August 21, 2013 | By Trevor Timm

Unjustified Detention of David Miranda Points to the Growing Problem of Suspicionless Border Surveillance

Guardian journalist Glenn Greenwald’s partner David Miranda was detained for almost nine hours by UK border authorities on Sunday under the pernicious Terrorism Act of 2000. He was on his way home from visiting Greenwald’s colleague and journalist Laura Poitras in Berlin. According to news accounts, Miranda was never asked about terrorism while held at Heathrow airport but was asked repeatedly about his partner’s journalism concering NSA surveillance.

This episode, along with reports that GCHQ—Britain’s version of the NSA—entered the Guardian offices and forced the paper to destroy its hard drives holding copies of documents leaked by NSA whistleblower Edward Snowden are as deeply disturbing, as they are somewhat ridiculous—certainly no one in GCHQ could have believe either episode would stop the public from learning about the illegal spying. Yet they demonstrate an increasingly unvarnished assault on press freedom that has no place in a democracy.

The detention of Miranda should also focus attention on the misuse by governments of borders as “rights free” zones for journalists and ordinary travelers, especially as travelers increasingly carry tremendous amounts of information with them in their digital devices like smartphones, laptops, thumb drives, hard drives and tablets. 

It’s a problem EFF has been tracking for a long time.  For those looking for some more practical advice, including how journalists can encrypt their work product, we recommend EFF’s white paper on protecting yourself during border crossings.

The Terrorism Act reinforces this “rights free border” problem.  It allows UK officials to detain anyone, without suspicion, and to question them as to whether they have terrorist ties. Yet UK lawyer David Allen Green has a detailed analysis of the law, concluding “if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.”

The stop of Miranda certainly seems to have been for a purpose other than determining whether he was a terrorist. Indeed, Reuters reported one US security official who confirmed the chilling effect and harassment purpose of the stop: "One of the main purposes of the British government's detention and questioning of Miranda was to send a message to recipients of Snowden's materials, including the Guardian, that the British government was serious about trying to shut down the leaks."

This practice is not limited to high profile cases like the NSA Spying revelations.  Privacy International, England’s premiere privacy organization, has documented how authorities regularly confiscate mobile phones of travellers under this statute and make copies of the contents. In Miranda's case, the conduct of the authorities was even more egregious, forcing Miranda to hand over his email and social media passwords on the threat of prison.

The US may not have a Terrorism Act, but we have a very similar problem that the  US government views the border as a “Fourth Amendment free” zone, where government officials are permitted to seize, search, and keep for to long electronics without any suspicion of criminal activity.

Just recently, the Ninth Circuit Court of Appeals implemented some small privacy protections for citizens traveling over the border, ruling that government agents must have "reasonable suspicion" before conducting a forensic examination of a computer at the border. But legal protection at the border should be even stronger and consistent with the Fourth Amendment’s requirement that law enforcement have a search warrant supported by probable cause before seizing and searching an electronic device at the border.

While EFF is working towards bringing privacy laws on the border up to date with the 21st century, the laws right now provide few protections. This is the strongest example yet that all people, be they journalists, couriers, or tourists, should not give up their rights just because they travel across a border.

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