One night several years ago in Myanmar, I returned to my hotel after dinner and found the lobby full of cops. They were there to get me. I’d been teaching creative nonfiction writing—aka journalism—under a government-approved program through the US Embassy. But for reasons unknown, at the conclusion of my course, the Myanmar government decided I needed to go. The officers told me to pack my bags, and they forced me onto an overnight train to Yangon—a brutally hot and dirty 16-hour ride under police escort. The next day, I was flown to Bangkok and my passport was stamped “deportee.”

A military junta ran the Myanmar government at that time, and the country was notorious for squelching individual freedoms and rights. Every newspaper was state-controlled, and every story was censored before publication. I knew the risks of working in Myanmar, but the experience still rattled me. I feared what the government could, or would, do to the students in my class. I returned home a few weeks later, still wondering about their safety—but thankful such dangers didn’t exist on US turf.

That was eight years ago.  

Times have changed.

When I leave the United States today, I no longer return with the certainty that I will get back in without scrutiny—or worse. Crackdowns on border security that began under President Obama have intensified under President Trump. Of particular concern to civil rights and journalism organizations is a sharp uptick in searches and seizures of cellphones, laptops, and other devices at the US border. According to data released earlier this month, during the first 6 months of fiscal year 2017, US Customs and Border Protection searched—without warrants—the electronic devices of 14,993 people crossing the US border. That’s a 79 percent increase over the same period in FY2016.

The Fourth Amendment of the US Constitution protects people from arbitrary searches and seizures–but not at the border. 

At the border (which includes international airport terminals), where CBP has extra-Constitutional powers to search “all persons, baggage and merchandise” without warrant or suspicion of wrongdoing. CBP interprets “baggage” to include electronic devices.

The American Civil Liberties Union disagrees. “We strongly think that the Fourth Amendment imposes limits on those searches,” says ACLU staff attorney Nathan Freed Wessler. But the issue has not yet made its way through the US court system. Meanwhile, Wessler says, travelers risk “very invasive searches with few limits.” This is a concern for anyone crossing the US border—but particularly so for journalists, doctors, and lawyers who frequently keep sensitive and confidential information about sources, patients, and clients on their cellphones and laptops. When journalists, for example, are searched or detained, not only are they at risk—so is anyone they’ve interviewed or met in confidentiality. (I recall the sick feeling in my gut for months after I was deported from Myanmar; thankfully, I know of no one I’d worked with who suffered as a consequence.)

What’s more, CBP claims its rights extend well beyond the border, into a 100-mile zone that traces the outline of the United States. Technically, US Code allows border agents the power to conduct warrantless searches “within a reasonable distance from any external boundary of the United States.” Wessler says CBP interprets “reasonable distance” to mean 100 miles. “Congress has never decided 100 miles is some magic number,” he says. “That’s all CBP.” More than 200 million people live in that zone, which includes a host of major American cities.

The ACLU is not the only concerned entity. A bipartisan bill introduced in the US House and Senate earlier this month would end the “legal Bermuda Triangle” that allows warrantless searches of electronic devices at the border. And the Knight First Amendment Institute at Columbia University filed a freedom of information lawsuit to compel the Department of Homeland Security to release information about its practice of conducting warrantless searches. The group is considering other legal challenges as well.

“We believe that indiscriminate searches of travelers’ cellphones and other devices at the border violates the First Amendment and the right to privacy because it allows the government to conduct a fishing expedition into the universe of personal information that we all store on our cellphones,” says Knight Institute senior attorney Katie Fallow. “Subjecting journalists to wide-ranging searches of all the contents of their cellphones and other devices is particularly troubling because it will interfere with the ability of reporters to communicate confidentially with sources and to report on critical issues of terrorism, civil wars, and human rights.”

Meanwhile, the ACLU encourages journalists and other travelers with sensitive data to make contingency plans when crossing the border. In March, Wessler and colleagues teamed up with the Society of Professional Journalists Rio Grande to offer a workshop on journalists’ rights, and steps for minimizing risk at the border. I attended the training and marveled at how the issues at stake mirrored those of other countries where journalists have no guaranteed constitutional freedoms of press or speech, or protections from unreasonable searches and seizures.

Another workshop participant, an editor of a border-area publication, told me she wanted her readers to understand why it’s important for citizens to keep an eye on those who keep an eye on them.

These concerns on the US border come at a time of decline in civil liberties around the world. The 2017 Freedom House report named populists and autocrats a dual threat to global democracy. Of 195 countries assessed, 45 percent were rated free, 30 percent partly so, and 25 percent not free. Among several “free” countries, including the United States, the organization noted setbacks in political rights, civil liberties, or both.

Freedom is a tenuous thing. Its decline is often slow and incremental, which makes the overall picture harder to see. Therefore, it’s easy to take freedom for granted—until or unless we don’t have it. Then, the absence of civil liberties is abundantly clear.

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