I SHOULD HAVE kept my mouth shut about the guacamole; that made things worse for me. Otherwise, what I’m about to describe could happen to any American who travels internationally.
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My work as a journalist has taken me to many foreign countries, including frequent trips to Mexico. On May 13, I was returning to the U.S. from Mexico City when, passing through immigration at the Austin airport, I was pulled out of line for “secondary screening,” a quasi-custodial law enforcement process that takes place in the Homeland Security zone of the airport.
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This time, when my turn came to show my passport, the U.S. Customs and Border Protection officer was more aggressive than usual in his questioning. I told him I’d been in Mexico for seven days for work, that I was a journalist, and that I travel to Mexico often, as he could see from my passport. That wasn’t enough for him, though. He wanted to know the substance of the story I was currently working on, which didn’t sit right with me. I tried to skirt the question, but he came back to it, pointedly.
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I muttered something about not having a legal obligation, under the circumstances, to disclose the contents of my reporting.
The agent, whose name was Moncivias, said we would see about that. He asked me to follow him into the secondary screening area.
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In retrospect, I was naive about the kind of agency CBP has become in the Trump era. Though I’ve reported several magazine stories in Mexico, none have been about immigration. [...] Later, I did remember reading a report in February about CBP targeting journalists, activists, and lawyers for scrutiny at ports of entry south of California, but I had never had a problem before, not in a lifetime of crossing the Texas-Mexico border scores of times on foot, by car, by plane, in a canoe, even swimming. This was the first time CBP had ever pulled me aside.
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A bespectacled supervisor named Lopez made an appearance. In a polite back-and-forth, I learned that I was not under arrest or suspected of any crime, and my citizenship was not in doubt, but if I didn’t answer the question asked by the “incident officer,” I wouldn’t be allowed into the United States.
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“Fine,” I said. “For the last six months, I’ve been doing an investigative journalism project to determine which restaurant has the best guacamole in all of Mexico.”
Moncivias didn’t miss a beat. “And what restaurant is that?”
“El Parnita, on Avenida Yucatán in Mexico City,” I told him, truthfully.
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The flippancy would cost me. From then on out, the officers made it clear that I was in for a long delay. When I saw how mad they were, I lost interest in the principle of the thing.
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Cooperation didn’t earn me any leniency. Next up was a thorough search of my suitcase, down to unscrewing the tops of my toiletries. That much I expected. But then a third officer, whose name was Villarreal, carefully read every page of my 2019 journal, including copious notes to self on work, relationships, friends, family, and all sorts of private reflections I had happened to write down.
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That was just the beginning. The real abuse of power was a warrantless search of my phone and laptop. This is the part that affects everyone, not just reporters and people who keep journals.
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In the absence of a controlling legal authority, CBP goes by its own rules, namely CBP Directive No. 3340-049A, pursuant to which CBP can search any person’s device, at any time, for any reason, or for no reason at all. If you refuse to give up your password, CBP’s policy is to seize the device. The agency may use “external equipment” to crack the passcode, “not merely to gain access to the device, but to review, copy, and/or analyze its contents,” according to the directive. CBP can look for any kind of evidence, any kind of information, and can share what it finds with any other federal agency, so long as doing so is “consistent with applicable law and policy.”
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I told the officers I had nothing to hide, but I felt I had a professional obligation to call an attorney for further advice. Pomeroy said I could not because I wasn’t under arrest; I just wasn’t allowed to enter the United States. I wasn’t allowed to leave the Homeland Security zone, either. I know because I tried to sort of wander out a couple of times and got yelled at. When I actually tried to call a lawyer friend of mine in Austin, Pomeroy stopped me. They held onto my phone from then out.
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Sophia Cope, an attorney with the Electronic Frontier Foundation, which has sued CBP over its warrantless device searches, told me that the agency “has for sure said no” as to whether there is a right to counsel during secondary screening.
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CBP has been doing warrantless device searches since the advent of the modern smartphone, Cope said, but the practice has increased by some 300 percent since Trump took office. In late 2017, EFF teamed up with the American Civil Liberties Union and filed a case alleging the unconstitutionality of the administration’s blitz of warrantless searches. Anecdotally, CBP appears to be targeting typical Trumpian scapegoats, including Muslims, Latinos, and journalists, but anyone reentering the United States can be subject to these searches. The 11 plaintiffs in the EFF and ACLU case are a computer programmer, a filmmaker, a graduate student, a nursing student, a limousine driver, a businessman, an engineer, a professor, an artist, and two journalists. All are U.S. citizens or legal permanent residents who had experiences similar to mine.
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“Regardless of whether you have embarrassing information on your device,” Cope said, “it’s about personal autonomy and living in a free society and not a police state.”
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After I gave him the password to my iPhone, Moncivias spent three hours reviewing hundreds of photos and videos and emails and calls and texts, including encrypted messages on WhatsApp, Signal, and Telegram. [...] He read my communications with friends, family, and loved ones. He went through my correspondence with colleagues, editors, and sources. He asked about the identities of people who have worked with me in war zones. He also went through my personal photos, which I resented.
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Pomeroy, meanwhile, searched my laptop. He browsed my emails and my internet history. He looked through financial spreadsheets and property records and business correspondence. He was able to see all the same photos and videos as Moncivias and then some, including photos I thought I had deleted.
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I was being physically submissive, keeping my hands visible at all times, not making any sudden moves, but Pomeroy would not let me see the laptop screen. I told him I at least had the right to know what files he was reviewing. “All of them,” he said, giving me a hard stare. “I’m going to look at all of them.”
“Please don’t look at the one called ‘Secret ISIS Confession,’” I said.
There was a South Asian couple detained along with me, a husband and wife with their luggage. Neither of them would have been able to get away with a crack like that. In my case, Pomeroy just determined to proceed even more painfully slowly.
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MONCIVIAS, POMEROY, AND VILLARREAL questioned me for hours on all aspects of my work. They asked about conversations with editors and colleagues. They asked about my political opinions. Moncivias wanted to know how I felt about Trump trying to pull troops from Syria. He asked if I’d had contact with the Taliban there, and I had to explain that the Taliban don’t operate in Syria. It was clear that they weren’t after anything in particular; their questions were completely scattershot. This wasn’t a continuous interrogation, either. They were wandering in and out of the room, leaving me alone for long periods of time. Interestingly, they didn’t ask me anything about CBP itself.
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I did see them copy my laptop’s serial number and write down three or four numbers and alphanumeric sequences found deep in my phone’s settings. The only specifier I halfway understood was the phone’s IMEI number, which can be used to track its physical location. Even if I get rid of the phone, I could be on some accursed watchlist, or somehow electronically tagged, for the rest of my life. [...] They frequently took my devices out of the room for long periods of time. When I asked if they had backed up the devices or copied files, they denied it, which I found hard to believe.
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Around the three-hour mark, I became completely passive. Confinement in a blank room is a soft form of torture, especially if you suffer from a crippling caffeine addiction, as I do. They were “fresh out” when I demeaned myself by meekly requesting coffee. For a long time, I sat slumped in the chair with a mounting headache while Moncivias finished typing up his report on me. He would pause, carefully consult something on my phone, and then go back to typing. This went on for another hour.
It was around 4 p.m. when Moncivias finally finished up and informed me, anticlimactically, that I was free to go. I couldn’t wait to get outside because the detention area was freezing. No wonder Spanish-speaking migrants call CBP detention la hielera — the icebox. [...] As I was walking out, I said to Moncivias and Villarreal, “It’s funny, of all the countries I’ve been to, the border guards have never treated me worse than here, in the one country I’m a citizen of, in the town where I was born.”
“Welcome back to the USA,” Moncivias said.
Seth Harp @ The Intercept
