NEW YORK — Five journalists who were tracked, detained, and interrogated by the Department of Homeland Security in an unprecedented, coordinated attack on the freedom of the press are suing to defend the First Amendment. The journalists were all reporting on conditions at the U.S.-Mexico border. On multiple separate occasions in 2018 and 2019, U.S. border officers targeted the journalists for secondary screening at the border, compelled them to disclose information about their sources and observations as journalists, and even searched through their photos and notes.
The lawsuit was filed by the American Civil Liberties Union, New York Civil Liberties Union, and ACLU of San Diego & Imperial Counties in the U.S. District Court for the Eastern District of New York.
“A core principle of our democracy is the freedom of the press. That freedom is imperiled when the government uses the pretext of border screening to interrogate journalists who were simply doing their jobs,” said Esha Bhandari, staff attorney with ACLU’s Speech, Privacy, and Technology Project.
The lawsuit argues that the government’s actions violated the First Amendment, chilling journalists from conducting constitutionally-protected newsgathering and reporting out of fear of being detained and questioned about their journalism work. It also asks the court to order the government to delete all records it obtained through the unlawful interrogations.
The five plaintiffs — Bing Guan, Go Nakamura, Mark Abramson, Kitra Cahana, and Ariana Drehsler — are all U.S. citizens and professional photojournalists. They were identified in a secret government database leaked to NBC San Diego in March 2019. The database included their headshots and personal information, including name, date of birth, occupation, and whether they had already been interrogated. Three of the headshots were crossed out with a bold ‘X.’ A fourth, which was not crossed out, warned, “Pending Encounter,” below it.
"When I saw my photo crossed out in a secret government database, I realized the secondary screening and interrogation wasn’t random. I was being targeted by my own government for reporting on conditions at the border," said Bing Guan.
Some of the journalists were on assignment in Mexico in late 2018 for news outlets including The New York Times and Reuters. The leaked government database identifies each individual as a member of the media. The photos some of the journalists took on the trips were later published by various news outlets.
“As a freelance photojournalist covering news and various issues, I want to know that I am free to work without government interference,” said Mark Abramson.
Despite knowing that the plaintiffs were members of the media, border officers interrogated all five about their work, asking questions about their reporting and about their knowledge of individuals they may have interacted with while working. A few journalists were presented with a book of headshots and asked to identify any “instigators” they recognized. Another was asked about her past coverage of conflict zones in the Middle East. There was also apparent coordination between the U.S. government and Mexican authorities to track the journalists’ movements while they were reporting at the southern border.
“Journalists are democracy's first line of defense,” said Kitra Cahana. “We need to be able to work without fear of being put on a secret government surveillance list or having alerts placed upon our passports. This interference effectively prevented me and other journalists from carrying out our reporting at the U.S.-Mexico border. It’s an issue that should concern everyone.”
Border officers required some of the journalists to show photographs they had taken of migrants and other people on the Mexican side of the U.S. border. One officer took pictures, using a cell phone, of one journalist’s photographs.