Akram Shibly
What happened to me in 2017, it was actually two back-to-back border detainment within about a week of one another.
Ramya Krishnan
Akram Shibly lives in Western New York, which is close to the US-Canada border. He crosses that border a lot.
Akram Shibly
And I've been detained before. I'm used to being profiled as a Muslim Syrian American. It's nothing new to me. But what was new to me at this detainment was I was handed a sheet of paper, and I was asked to turn over my social media information, and the password to my cell phone in addition to my cell phone.
Ramya Krishnan
Last episode, my colleague Anna Diakun talked about social media surveillance at the border. A practice that was dramatically expanded under the Trump administration. Searches of electronic devices at the border also started to skyrocket under the administration. In fiscal year 2017, for example, border agents conducted upwards of 30,000 searches, a nearly 60% increase from the year before.
Akram Shibly
I thought that was a little bit too much like, “Sure, search me search... You have every right to identify what I'm bringing across the border.” But it felt like going into my cell phone was more than just a border search, it was an entire search on my life beyond what I was doing at the border, beyond what I was traveling for. And there's personal information. There's just a whole lot more than I would have been comfortable giving up without any sort of protection, or knowing my rights. So, I actually refused to write down my password, and the response that I got was, “Well, that must mean you're doing something wrong.” So, they pressured me to unlock my phone, and they took my phone, I don't know where they took it, but it was behind closed doors, and I wouldn't have my phone back for another couple hours where I was then told I was okay to go home.
Ramya Krishnan
Akram's second detainment happened less than a week later after he took his wife out to dinner in Toronto.
Akram Shibly
And this time when they asked for my cell phone, I just straight out said, “No.” Said, “No, it's not happening.”
Ramya Krishnan
This is “Views on First: Speech & the Border,” with the Frontiers of Censorship and Surveillance. I'm Ramya Krishnan, a lawyer at the Knight First Amendment Institute at Columbia University. In the last couple of episodes, we've discussed the surveillance, and censorship to which non-citizens are sometimes subjected at the border. But when it comes to crossing the US border, everyone's rights fall into a gray area. It doesn't matter who you are, whether you're a citizen, or non-citizen when you cross the border, border agents claim the authority to search your electronic devices for any reason, or no reason at all. Of course, the burden of searches doesn't fall on all of us equally. Members of Muslim, Arab, Middle Eastern, and South Asian communities are disproportionately targeted, so are journalists, and documentarians who often have to cross borders for their work.
Akram Shibly
I am a Syrian-American filmmaker storyteller, I guess you could say. Community organizer. I've been making films professionally for a little over 10 years now.
Ramya Krishnan
And his work is heavily inspired by his Syrian heritage.
Akram Shibly
I used to go there every summer, whether I liked it, or not. So, a part of my identity is rooted there, and when I could no longer go there due to the conflict in Syria, I felt that I had a responsibility to tell the stories of Syrians, of displaced Syrians, and their resilience, and that brought me to Jordan, to Lebanon, to Turkey. I've been searched many times, whether it's the border between the US, and Canada, whether it's other ports of entry, like if I am flying back from overseas, and it just kind of becomes this whole meme like, “Oh, you're flying while Muslim, get ready to just wait in the interrogation room." So, it's something I have been accustomed to. I just never was accustomed to them going beyond what I'm physically carrying, and beyond routine questions about why I was traveling, what the purpose of my trip was. This felt quite invasive.
Ramya Krishnan
More than invasive. When Akram refused to give up his phone the second time he was detained, it was like a switch flipped, and the agents suddenly became aggressive.
Akram Shibly
And at that point, they forcefully took my phone, three officers put their hands on me, one put their hand around my throat, another tied up my legs, and the third reached into my pocket, and took my cell phone.
Ramya Krishnan
Akram's wife was sitting right next to him.
Akram Shibly
She was just like, “Yo, Akram, can you just give them your phone?” She was scared, but there was a really interesting distinction between how I was treated, and how my wife was treated.
Ramya Krishnan
Akram's wife is white.
Akram Shibly
My wife was offered a glass of water after she saw all of this go down. I was not.
Ramya Krishnan
Although he's able to laugh at it now, the experience was distressing, and left an enduring mark on him.
Akram Shibly
There was a physical trauma of being assaulted that drove me to therapy that year. I think the longer lasting trauma of having that cell phone search in some ways actually hurt me more because I still to this day don't know what they did with my phone, what's on their servers, and why I was singled out, so it had a huge impact on my sense of belonging.
Ramya Krishnan
Like many Muslim, and Arab Americans, Akram has been singled out at the border before, but the last time he experienced an ordeal of this magnitude was in 2004 when his whole family was detained at the border. They were driving back home from the Reviving Islamic Spirit Convention.
Akram Shibly
It's an annual gathering in Toronto that features inspirational Muslim speakers. It has a bustling bazaar. People come from all around the world to sell clothing, religious items, food, and there's also entertainment. There's concerts that happen. And for me growing up, it was kind of like a formative experience going to this conference every year.
Ramya Krishnan
Akram doesn't remember much about this incident. He was nine years old in 2004, and it was after midnight when his parents reached the US border on their way back home.
Akram Shibly
I just remember waking up to my mom, and brother in the parking lot on the phone trying to call anyone, and everyone they know calling the media, calling for help. I'm stumbling awake, I'm like, “What's going on?” And then they're like, “Yeah, Akram, we should see who's inside there.” So, we go inside the detention facility, and it was literally like I was standing at the mosque. It was full of Muslims that I know, Muslims from Buffalo who are also at the conference, driving home that evening, and it was crowded, and it was packed. There were mothers, grandmothers, babies all being detained, detained, fingerprinted, interrogated. It was scary. And my mother, she is a fighter, and the first thing she said when she entered the building, she's like, “Is this not the land of the free, and the home of the brave?" I was scared. And at the time, I think my mom was able to successfully advocate for me to go home with a family that was leaving who had already been there for four to six hours.
So, I was fortunate enough to not spend the whole night, but my mother was there until after 6:00 AM. No food, no water because she refused to allow them to fingerprint her. And it reached a point where they used my siblings, my older brother, and sister to pressure her. They're like, “Tell your mom to get her fingerprints done so you can go home.” So, they were using the children to manipulate my mother, and I think around 6:00 AM, she finally collapsed, and she did it, and she had to drive home after that. No sleep, no food, awake for almost 24 hours with children in her car, including my 1-year-old sister at the time. What did stick with me is my mom gasping for air through tears while they were trying to force her into an interrogation room. What stuck with me was that confusion, that fear as a child, and then going home with another family, not knowing if my family's going to be coming back the next morning. I was sleeping on a couch, and I woke up, “Is mom okay?” Those are the feelings that stuck with me.
Ramya Krishnan
Akram's family had been detained pursuant to a federal policy targeting thousands of people who had attended Islamic conferences over the year-end holiday season. U.S. Customs and Border Protection had received intelligence that persons with known terrorist ties would be in attendance at these conferences. Based on that intelligence, it authorized border agents to subject anyone who had attended one of these conferences to a screening procedure usually reserved for suspected terrorists. Akram's mother, Salsan Tabah, sued over the policy with the help of the ACLU. She, and her co-plaintiffs, argued that the policy violated their First and Fourth Amendment rights, but a federal court of appeals disagreed. In the court's view, the government searches fell within the bounds of a routine border search and so didn't require reasonable suspicion or probable cause.
The court acknowledged that the searches burdened the plaintiffs' freedom of association, but it held that the detentions and searches were justified by the government's overriding interest in preventing terrorism. Akram's own experience at the border in 2017 has so many parallels to Salsan's experience. In fact, the first time he was detained, he was on his way back from the very same convention. The second time he was detained, he thought about his mother, the fighter, and decided he wouldn't stay quiet either.
Akram Shibly
I think it all started when I went live on the way home from the second incident when I was assaulted. I just kind of spilled my heart out on a Facebook Live. This is what happened to me, and it caught the attention of a journalist at NBC News who ended up doing a piece on it in the Lester Holt program.
NBC News Announcer
Over the past month, NBC News has spoken with 25 American citizens stopped at the border, 8 since President Trump took office.
Akram Shibly
And with the attention and the awareness that I was able to garner from my incident, it then caught the attention of ACLU and the Electronic Frontier Foundation, who were already working on a case regarding what they deemed as unlawful device searches at the border.
Ramya Krishnan
He joined the case as a plaintiff, much like his mom had done more than a decade before him.
Akram Shibly
I'm seeing it play out generationally. I'm picking up the struggle that my mom left for me because she wouldn't go quietly. She would not go quietly, and she knew it was wrong, and she did something about it. And so when it came my turn, I felt the same sort of motivation like, “This is wrong, and I need to do something about it,” and it's not about ourselves again, it's about the collective. It's about the other people of color, Muslims, indigenous people who are some of the most subjected to border violations. It's like, “If my mom's going to do it, of course I'm going to do it. Of course, I'm going to do it.”
Stephanie Krent
Alasaad is a case in which several travelers raised both Fourth and First Amendment challenges to the government's authority to search devices at the border.
Ramya Krishnan
This is Stephanie Krent, a colleague of mine at the Knight Institute. She worked closely on an amicus brief that the institute filed in Akram's case, Alasaad vs. Mayorkas.
Stephanie Krent
The case was brought by a number of travelers. Most of them were US citizens. I believe one was a permanent resident of the United States.
Ramya Krishnan
All of these individuals had been stopped at the border, some repeatedly so.
Stephanie Krent
And so they brought an affirmative lawsuit to stop border agents, people that work in CBP and ICE, from searching their phones without any sort of suspicion in the future, rather than kind of waiting for these searches and then attacking them after they occur.
Ramya Krishnan
This case was based on the First and Fourth Amendments, much like Akram's mother's suit. Although the decision in that case was terrible, it got one thing right. It recognized that the First Amendment protects different interests than the Fourth Amendment, and so demands a different legal analysis. The Fourth Amendment is meant to protect against unreasonable search and seizure.
Stephanie Krent
Inside of the US, the default is that the government should have a warrant before it conducts a search of your belongings. That's especially true when it's searching your private papers, anything that might be expressive. That presumption is flipped at the border.
Ramya Krishnan
This is called the border search exception. Under this exception, the government has broad authority to search people and their belongings at the border.
Stephanie Krent
The government can certainly go through your luggage. Anything that you're taking with you across the border, it can search and seize. It can pull you into a secondary room and ask you questions about your travel and the purposes for your travel.
Ramya Krishnan
Historically, these kinds of searches have been treated as so-called routine searches. The government isn't required to get a warrant supported by probable cause, or even to have reasonable suspicion of a crime before undertaking a routine search. Then there are non-routine searches.
Stephanie Krent
Those are things like strip searches that are particularly invasive.
Ramya Krishnan
Although the Supreme Court has not yet decided the question, most lower courts have held that reasonable suspicion is required before undertaking these searches. There is this push and pull between interests when it comes to border searches. On one side of the balance is the government's interest in policing our borders. On the other is our rights under the First and Fourth Amendments. This tension was a subject of a 1977 case called United States vs. Ramsey.
Stephanie Krent
And in that case, there was an international piece of mail that was seized at the border, so not a traveler going back and forth, but a piece of mail that was sent, and it looked suspicious to the officer who was checking it. So, the envelope was opened, and it contained contraband. That case goes all the way up to the Supreme Court where litigants argue that opening a piece of mail is sacrosanct and needs to be protected by the First Amendment, and also by the Fourth Amendment.
Ramya Krishnan
But the court wasn't concerned about the First Amendment because the regulations at issue prevented agents from reading the mail without a warrant, and its discussion of the Fourth Amendment was even more cursory.
Stephanie Krent
It says that searches that occur at the border are reasonable simply by virtue of being at the border. Governments have always been able to control who and what can come in and who and what must stay out. Because of that, the court says it's not going to take any second look at searches that occur at the border.
Ramya Krishnan
As a First Amendment litigator whose work focuses on the relationship between free speech and new technologies, I'm often grappling with how analog-era precedents apply to digital-era questions. Ramsey is a case in point, emerging from the seventies. It predates the internet and concerns a single piece of international mail. It simply did not anticipate the privacy and speech concerns raised by the search of a modern-day cell phone.
Stephanie Krent
When any of us travels with our cell phone, we are taking a record of almost all of our correspondence over as many years as we've had a smartphone, right? So, all of our text messages, all of our private social media messages, all of our emails, we are taking, in many instances, our work product. For people like us, that are lawyers, that could include privileged and confidential information. For journalists, that might include information with sources that have been guaranteed confidentiality and have been guaranteed protection. For doctors, it might include sensitive medical information. We carry intimate conversations we have with our romantic partners, with our families, with our closest friends. We carry records of every person we've been in contact with through our phone book and our email address history.
We carry the political groups we're part of. We carry any writings we have, like notes to ourselves, right? Some people keep journals on their phones or their laptops where they share intimate details about their lives that they wouldn't want to share with anyone, much less with the government who can use it for any purpose that it wants. Because of that, your cell phone is really an extension of your mind and your being in a way that your luggage is not, in a way that even a single letter is not because it really reflects such extensive and personal details about your life.
Ramya Krishnan
The Supreme Court hasn't yet considered how cases like Ramsey apply to new technology like cell phones and laptops. But in a series of cases that didn't involve the border, the Court has recognized that new technology may require more protective rules.
Stephanie Krent
So, in Carpenter, that case was about the third-party doctrine, which basically means that if I tell you a piece of information or I give you a piece of information, I no longer have a privacy interest in that information. You could give it to police officers or to the government, and I really wouldn't have a leg to stand on complaining about that because I've voluntarily opened it up to you. The Court has said that that may be true in analog eras, but when you're talking about kind of voluntarily giving information to third parties, like cell phone towers that are able to ping where your cell phone is at every moment in time, that really changes the kind of underlying reasons why those exceptions made sense in the analog era, and we need to rethink them in the digital age.
Ramya Krishnan
In a case called Riley vs. California, the Court took up something called the search incident to arrest exception.
Stephanie Krent
Which means that if you're being arrested, government officers can search you. And this was historically understood as a pretty obvious exception because officers have to make sure that they are safe and that you might not be able to destroy evidence that you have on your body that could be used against you later. But the Court said, when you're thinking about a cell phone, and you have a police officer that could just open your cell phone and rifle through all of this information for reasons that may be totally untethered to the reason you were arrested, that raises completely different concerns and needs to be analyzed differently.
Ramya Krishnan
Then there's the First Amendment, which protects Americans' freedom of speech and association. In the context of electronic device searches at the border, the First and Fourth Amendments are closely intertwined. Whereas the Fourth Amendment protects privacy, the First Amendment provides additional protection when speech or association is at issue.
Stephanie Krent
You could consider it an independent bulwark, an independent source of protection for travelers, for journalists, for anyone who's crossing the border.
Ramya Krishnan
And in addition to being an independent source of protection....
Stephanie Krent
The fact that this expressive material is wrapped up in electronic device searches at the border plays an important role in how the Fourth Amendment analysis should unfurl. And in fact, we think it means that these searches typically must be supported by probable cause, and by a warrant.
Ramya Krishnan
Back to the Alasaad case. The question in this case was whether the CBP, and immigration, and customs enforcement policies governing electronic device searches at the border violate the Fourth, and First Amendments. Those policies distinguish between what the government calls basic, and advanced, or forensic searches.
Stephanie Krent
A basic search is kind of a misnomer in my opinion, because a basic search means just that the agents at the border are not using any sort of technological means to access your device, but short of that, they can search anything on the device. So, they might open up Facebook, open up your email account. In theory, they could open up your banking account, they can look through the phone, and they have looked through people's electronic devices to see whatever it is that they can find. That's a basic search. And under policies that were revised in 2018, the government says that no level of suspicion is required for basic searches. So, all of us, you, and me, we could be subject to a basic search for absolutely no reason anytime we travel across the border. Advanced searches are searches where technology is involved.
Ramya Krishnan
Agents can use that technology not only to gain access to your device, but also to review, copy, and analyze everything on it. Under its policies, the government says that it will conduct advanced searches only where it has reasonable suspicion of wrongdoing. The Alasaad plaintiffs argued that...
Stephanie Krent
Regardless of whether you're conducting a basic search, or an advanced search, the sensitivity, and the volume of the information that's contained on these devices is such that what is actually needed in every instance is a warrant.
Ramya Krishnan
In the federal district court of Massachusetts, they won a partial victory.
Stephanie Krent
The court decided that reasonable suspicion was required, and the court went a step further because the question I think is always, “Well reasonable suspicion of what?” And the court said “It's not enough to suspect that someone might be committing a crime when they're crossing through the border.”
Ramya Krishnan
Instead, it required reasonable suspicion that the device contains contraband, or data that is legal to possess like child pornography.
Stephanie Krent
But that's a lot narrower than reasonable suspicion of any wrongdoing.
Ramya Krishnan
And the reason was the interests on both sides of the balance. On one side of the scales was the government's interests. The court recognized the historically narrow purpose of the border search exception, preventing the entry of contraband into the country, allowing border agents to search for evidence of contraband, and other potential violations of the law wasn't necessary to that aim. On the other side of the scales are our interests in privacy, and expressive, and associational freedom. Here the court acknowledged that searching a device is categorically more intrusive than searching a person's other belongings.
Stephanie Krent
So, although it wasn't totally in favor of either the group of travelers who brought the suit, or the government, it was largely a victory, I think, for Fourth Amendment protections for people that are traveling across borders.
Ramya Krishnan
Unsurprisingly, the government appealed.
Stephanie Krent
The government's argument really went back to Ramsey, and said, “The border is the border, and searches that are conducted at the border are reasonable by virtue of the fact that they occur at the border.” And it pointed out that CBP, and ICE policy, right border agent policy requires reasonable suspicion already of forensic searches.
Ramya Krishnan
But as the Knight Institute argued in the amicus brief, it filed with the Reporters Committee for Freedom of the Press, even a basic search could reveal some of the most intimate details of your life. A basic search allows the government to come in, without any suspicion, and look through all of the emails you've sent, the contacts you've saved, maybe even the pregnancy data from your period tracking app. It can also...
Stephanie Krent
Burden your right to anonymous speech, because perhaps you are writing anonymously on certain social media sites, but the government by virtue of these searches would unmask you as the person that's behind those accounts.
Ramya Krishnan
The anonymity concerns don't just stop with you.
Stephanie Krent
When you have journalists crossing the border, border searches threaten their ability to talk to sources confidentially, their ability to publish the stories that we need, we need to hear, and we need to listen to, right? So, it's a threat to press freedom, which is really a threat to our own ability to learn about government wrongdoing, whether that's the government here, or governments in other countries to understand current events. And so we focused on journalists as well as on travelers because it adds, I think, another dimension to the expressive harms in this case.
Ramya Krishnan
But the First Circuit did not agree.
Stephanie Krent
It took really a huge step back. It said that basic searches which are manual searches of electronic devices, those can occur without any suspicion of wrongdoing at all. It also said that advanced forensic searches don't require a warrant, and probably all that's required is reasonable suspicion of any sort of border-related crime. So, a really kind of disappointing result after an important interim victory, in that case.
Ramya Krishnan
Akram's feelings about the case reflect this complicated reality.
Akram Shibly
I did have hope for a while because there was victories early on, and it's like this dance being an American because the promises feel so real at times, and the advocacy of the ACLU, and the EFF had me feeling like we may actually be able to move the needle on this, but the fact that the courts doubled down on what is a disastrous decision, it hurt me not because I felt like that I myself did not receive justice. It just hurt me to know that others are going to continue to be subjected to the pain that I was, and imagine who else might be out there struggling with the same identity issues that I'm struggling with, that I have struggled with who doesn't have a support system, who doesn't have a platform to air their grievance, and cope with, and deal with, and receive therapy for the trauma of having this invasive search.
Ramya Krishnan
But it isn't all bad news. Just this July, a federal court in New York held that the government must obtain a warrant based on probable cause before searching travelers electronic devices at the border. The ruling came in a case in which a criminal defendant, Kurbonali Sultanov, moved to suppress evidence obtained from a search of his cell phone when he entered the country at JFK. Significantly, the ruling called out the burdens that these searches impose on people's call First Amendment protected activities. As this decision demonstrates, the law in this area is still developing.
Stephanie Krent
No court of appeals has held that probable cause, or a warrant is required before the government can conduct those searches. Underneath that cohesion, though, I think there's really a wide variety.
Ramya Krishnan
For example, some circuits like the Ninth Circuit have held that to conduct an advanced search...
Stephanie Krent
You need reasonable suspicion that there is contraband on that specific device, otherwise, you cannot conduct a search. You have some circuits that say even for these most advanced forensic searches, no suspicion of any sort of wrongdoing is required. There are also a number of circuits that have not weighed in at all. The Second Circuit, for example, has yet to decide kind of the scope of the border search exception as it relates to electronic devices.
Ramya Krishnan
And do you think that this is an issue that will go to the Supreme Court at some stage?
Stephanie Krent
I do, and the reason I think it will is, because there is a lot of uncertainty here, given that every court seems to be in kind of its own world, and developing its own variation on the test it's applying to these searches, I think it is likely that eventually this will make its way up to the Supreme Court.
Ramya Krishnan
When it comes to the law, that's where things stand. The human consequences, however, are still playing out. Akram Shibly says his assault by border offices changed him. In addition to working with the ACLU as part of this lawsuit, he shifted his focus to activism, and organizing with other Muslim Americans that there was a trade-off.
Akram Shibly
And it really did take me away from my filmmaking, and my storytelling for a long time, and I'm still working my way back.
Ramya Krishnan
The incident also affected him in a deeper way.
Akram Shibly
Existing at this intersection of Arab and American is already difficult enough as it is, because there's the political, and social complexities of being national to a country that is consistently in conflict with your countries of origin. And even at a small level, like growing up in kindergarten, I was told I look like Osama bin Laden, and you're called all sorts of names, and you struggle with your identity. And one of the things that gives you hope, and keeps you, I guess, attached to this promise of America is knowing that, okay, what people say cannot supersede the rights that you have. I could be bullied to the ends of the earth, but knowing that I have a home here, and knowing that I belong here, at least on paper as a US citizen grounded me. So, when I was detained, when I am scrutinized at the border, when I'm physically assaulted for no other explainable reason other than my family history, or my religion, at many levels, you start to question whether, or not you belong.
Ramya Krishnan
When he reflects on what he, and his family have been through, and on their legal battles, Akram tries to see the bigger picture.
Akram Shibly
I think as I've grown older, I've realized what it takes to protect our freedom. And maybe even when we initially lost the case, my case, I think it was a great letdown. But over time, I'm realizing the fight to protect our freedom isn't just one case lost, or a second case lost. It might take multiple. And so I actually see these cases not as unsuccessful, but actually as successes, as first steps into chipping away at this problem, even if the outcome wasn't in our favor now, I'm hoping that this will create momentum, and precedent, and a sense that these violations will not go unchallenged, and I'm hoping that that does actually have an impact. So, I think the shift would be from seeing this kind of black, and white world where you win, and lose to seeing a more complex world where we're just continually doing this work, and going to continue to fight these issues as they come up. So, I guess I maybe have a little more hope.
Ramya Krishnan
On the next episode of “Speech & the Border,” the pernicious spyware technology industry.
Nelson Rauda Zablah
This is not an attack on journalists. This is an attack on people, on the people right to know.
Ramya Krishnan
Repressive governments often use spyware to reach across borders, and surveil the work of journalists, and activists. I am Ramya Krishnan. I'm a lawyer at the Knight First Amendment Institute. Thank you for listening to this episode. “Speech & the Border” is co-produced by Anne Marie Awad, and Kushal Dev. Our executive producer is Candace White. Our engineer is Patrice Mondragon, creative direction from Carrie DeCell. Fact-Checking by Roni Gal-Oz and Teddy Wyche. The art for our show was created by Nash Weerasekera. Our theme music was composed by Grayson Newman with additional music from Epidemic Sound. “Views on First” is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit our website KnightColumbia.org. That's Knight with a K, and follow us on social media. Goodbye.