DHS Should Stop Surveilling Activists, Journalists, and Lawyers

Written by Greg Nojeim, Mana Azarmi

The Department of Homeland Security (DHS) appears to be targeting activists, journalists, and lawyers for enhanced screening at ports of entry based on their speech and association with asylum-seekers. Going even further, DHS is documenting and disseminating records of political activity. This chills the exercise of constitutional rights and could have dire consequences. If the reports on this conduct are accurate, it could effectively silence the speech of vital watchers of democracy and activists working for change.

This conduct is so egregious and corrosive to the exercise of constitutional rights that the Center for Democracy & Technology organized a diverse coalition spanning the political spectrum and consisting of over 100 civil liberties, civil rights, free press, human rights, government accountability, and immigrant rights organizations, legal service providers, and trade associations to demand that DHS immediately cease any politically motivated surveillance of activists, journalists, lawyers, and protest activity.

When the government threatens the rights to free expression and association of people challenging government policy and providing essential oversight, democracy loses.

First-hand accounts and leaked documents suggest that Mexican and U.S. government entities targeted activists, journalists, and lawyers working with or reporting on asylum seekers at the border near San Diego. They were subjected to enhanced scrutiny, including extended detentions, interrogations, searches of their cell phones and other electronic devices, and denied re-entry to Mexico. Leaked slides apparently from U.S. Customs and Border Protection (CBP) included photographs of 59 journalists, activists, and lawyers—many of whom are U.S. citizens— that were labeled to reflect associations to migrants at the southern border as “journalist,” “organizer,” “lawyer, ” et cetera. Some were simply labeled as an “instigator.” Journalists and lawyers were also targeted for enhanced scrutiny and a device search at ports of entry in Arizona and Texas.

Not to be outdone, U.S. Immigration and Customs Enforcement-Homeland Security Investigations (ICE-HSI) documented and disseminated a spreadsheet of “Anti-Trump” protests that took place between July 21 and August 17, 2018, in New York City. The spreadsheet included the names of the groups sponsoring each protest, the political goal of the protest, and the number of people who signed up on Facebook to attend the protest.

And, documents released just this week showed that last year, the DHS Office of Intelligence and Analysis had disseminated to its staff and to ICE enforcement personnel a spreadsheet detailing the locations across the country of 600 “Family Separation Day” protests scheduled for June 30, 2018. LookingGlass Cyber Solutions, which in 2015 acquired a State Department contractor specializing in open-source intelligence analysis, compiled the data using social media information shared on Facebook.

All of this constitutes an alarming pattern of problematic DHS surveillance. This abusive conduct jeopardizes the exercise of First Amendment Rights, access to legal counsel, and likely violates the Privacy Act of 1974. DHS should cease any targeting of activists, journalists, and lawyers based on their First Amendment-protected speech and associational activities and ensure that enforcement actions are not politically motivated.

It should also cease border searches of the electronic devices of activists, journalists, and lawyers absent a warrant, in contrast to CBP’s current policy, which permits it to search electronic devices at the border without any suspicion at all. CDT has long challenged this approach, and called for legislation imposing a warrant standard. Electronic devices are not akin to luggage—they carry a quantity and quality of data never before conceived of and can portray an intimate portrait and history of a traveler’s life. For journalists and lawyers, such searches can compromise the confidentiality of sources and clients, damage a free press, deter reporting on particular topics and comprise a client’s right to effective counsel. That individuals may have been selected for such treatment based on their First Amendment activity is all the more troubling.

Members of Congress are already asking both ICE and CBP for clear answers about what took place and how such activities were authorized, and the DHS IG is investigating CBP. We join their efforts to institute much needed reform. When the government threatens the rights to free expression and association of people challenging government policy and providing essential oversight, democracy loses.

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