Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings

from the muh-national-security dept

Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)

The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn’t like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP’s open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.

This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.


[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.

Both plaintiffs allege the CBP’s practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can’t be documented by the public.

The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency’s claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn’t the way things are done. The lower court should not have lifted the government’s burden of proof onto its own shoulders and carried it home for it.

The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.

These conclusions are too thin to justify judgment for the government on a motion to dismiss. […] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We’ll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings”

Subscribe: RSS Leave a comment
Ehud Gavron (profile) says:

Awesome first step!

In Arizona we have lots of “temporary checkpoints”, some of which have been “temporary” for over fifteen years. The actions of the CBP staffers there, including waving some people through seemingly at random, asking others seemingly random questions, and asking some questions that are inappropriate are common and frequent.

With the exception of a few fighting citizens with video cameras all over their car, a notice that “I won’t answer any questions” and a youtube channel most people and *ALL* truckers *submit* to this practice daily.

If you try and take pictures or video (except for the special people who make a living out of this as above) they will intimidate you, send you to “secondary” (timeout for 20-30 minutes while they ignore you), etc.

It’s about time the judicial branch stepped in to put a stop to what already should never have been there. But then, the problems with the executive start at the top.

Ehud Gavron
Tucson, AZ

Anonymous Coward says:

Re: Awesome first step!

No. The problems with the executive starts with the voters just as it is with the legislative. Ultimately a willfully ignorant and easily manipulated electorate regardless of party is to blame for the regular violation of our rights that our founding fathers won at such high cost.

The general public only values free speech if it’s speech we agree with. We only tolerate religious view points that are our own, while our own are inherently right and proper regardless of who they hurt or demean. The Fourth and Fifth Amendments merely protect the guilty from lawful prosecution… until it’s someone we know then we wonder why they’re so weak, why our car was seized and sold off because someone ELSE used it in a crime… Then we all pile on the latest “NAMED VICTIM” law that’s so poorly written that it erodes our rights even further in the name of Law and Order and Safety.

The judicial system is supposed to be our bulwark against this kind of thing but when it errs there is usually little legislative will to fix the error, and even if there is special interests are invited in to tilt the playing field in their representative direction resulting in more regulatory capture.

Anonymous Coward says:

Re: Re: Awesome first step!

Statistics say that accusing everyone in a stereotypical group will result in false accusations, sometimes many more than you may or may not have anticipated.

To blame the victim is to say you do not give a shit about the problem and are simply pointing the finger away from your self and or others.

Anonymous Coward says:

Re: Re: Re:

Knowing the over reach of the US in applying US law to the whole world I see no reason why the Canadians are not afflicted by the same disease especially when it concerns a border crossing into Canada.

Just what are we talking about here?

Are Canadians coming into the the US to stop US citizens from filming the border crossing

or is the US border patrol going nuts again?

Recall last week we had a decision in a court case where the US border patrol was shooting across the border and killing Mexican citizens in Mexico because the Mexicans were throwing rocks across the boarder.

Who is doing what to whom?

orbitalinsertion (profile) says:

Re: Re: Re: Re:

Considering that Canada does not share a border with Mexico, the answer would be no, CBP does not mean “Canadian Border Patrol”.

Even if Canada were involved in such an extreme case of overreach as to have checkpoints at the Mexican border, US court decisions regarding rights violations of particular individuals would not be what is happening. There would be something far, far more interesting afoot.

Also, there is no “Canadian Border Patrol”, unless you are referring to the entertainment industry, in which case … well geez, just never mind.

Ehud Gavron (profile) says:

Re: The "don't wear a short skirt problem"

And here you are blaming the victim because they innocently enough thought they could take pictures in public. They are not the problem. Thuggish government agents are the problem.

We need to stop thuggish government agents, not tell people how to work around the thuggery, although that’s important too. Solving the problem is better than technologizing around it — all that causes is the “growing dark problem” and government working to remove even those technological workarounds.


Anonymous Coward says:

Re: Re: The "don't wear a short skirt problem"

The “growing dark problem” is a metaphor for the dark and bloody history of Socialism, which is now being publicly promoted by leftists like you. “Thuggish government agents”, wow, do you think giving the government MORE power is going to help that? You have a dark and anarchistic view, held by a small but very vocal minority.

I know that you are not satisfied with the results of lawful elections, because you lost, thank God. The rest of us feel pretty good. 🙂

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:3 The "don't wear a short skirt problem"

Keep it up. You and your ilk are the reason the thuggish government uses to keep on being thuggish. The rest of us do not appreciate it. There are better ways.

We might get to your method, but there a lots of possibilities in the interim. Consider those.

Anonymous Coward says:

Re: Re: Re:4 The "don't wear a short skirt problem"

No, that is not the case. In the US, we use elections to choose our government. Only. There are no other mechanisms, as much as the left wishes there were (electoral college mutiny, for example). No other mechanisms. Voting. That’s it. And you lost, anarchist. MAGA

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:5 The "don't wear a short skirt problem"

That attitude is your problem, not ours. Yes, the current choice is through elections. At some point the electorate will become sufficiently disgusted with the current status quo, and do something about it.

The point is, education of the electorate, getting them to understand how corrupt the system is, and getting them to forget their political loyalties is a method that is in the works. It certainly needs more work, but there is in fact a method that is not yours, but could work. There are likely more.

BTW, being more adamant does not make you more correct.

Anonymous Coward says:

Re: Re: Re:7 The "don't wear a short skirt problem"

Well, don’t be shy now, I want to understand your view, really I do.

“The electorate needs to understand how corrupt the system is” – ok, I’m right with you on that. Sunlight is the best remedy to corruption. How corrupt is he existing system, and what would you replace it with? Are you advocating no system, improving the current system, or abandoning the current system in favor of a new one? If no system, ok, you’re an idiot, and I take back what i said about wanting to listen to you. If you want to improve the current one, what ideas do you have? If you have a new system in mind, how exactly would you prevent corruption in the new system?

Everybody knew, dating back to the founding fathers, that any system of government is likely to be affected by corruption (and pretty faces combined with strong vocal tonality). However, the only way to eliminate corruption altogether is with totalitarian methods, which are worse. I hope you are not advocating totalitarian methods, because you would be back to being a blithering idiot again.

What are you advocating? I’m all ears.

Anonymous Coward says:

Re: Re: Re:8 The "don't wear a short skirt problem"

Do any of you remember the good old days when Americans were publicly self-described as a “united people descending from the same ancestors” and how they have together established Liberty and Independence.

Sad to see what’s happened since then, don’t you think?

Anonymous Coward says:

Re: Re: Re:9 The "don't wear a short skirt problem"

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.

Though written long ago, that pretty much describes the situation today.

The question remains whether the abberant factions of the disenfranchised can be confederated in Modern America, or whether they will first consume each other in the blazing fire of multi-generational hatred and condemnation. Without a unifying leader, it seems doubtful they will manage to stay on point, and will instead dissolve into nothing, each claiming a superior harm from generations past, unwilling and unable to sacrifice in support of each other.

Anonymous Coward says:

Re: Re: Re:5 MAGA = Godwin's Law

And OMG you are an “Insider”. Do you guys really dress up in long leather boots and salute a shared Anarchist flag in your Secret Techdirt Insider Club? Were you that feminine looking idiot with long hair and makeup screaming at the Police in DC? Do you go to public marches, or are you guys happy to just meet secretly behind closed doors with like-minded others that compare a duly elected and extremely popular Trump to Hitler?

Anonymous Coward says:

Re: Re: Re:7 MAGA = Godwin's Law

Thank you, that’s high praise coming from a critical thinker like you. I’m surprised that any of you “Insiders” have any sense of public entertainment, given the well established secrecy and avoidance of scrutiny in your little (tiny) society. You should relax and have fun more, like the rest of us do. Just let it all hang out.

And you should definitely get over the whole censorship thing, it’s a real blemish on your integrity and reflects badly on your whole (strange and secretive) group.

Anonymous Coward says:

Re: Re: Re:5 MAGA = Godwin's Law

You compare Make America Great Again to Nazis.

Neo-Nazis openly showed their support for Trump’s government and have been consistently asking him to reciprocate after his seat in the White House was confirmed.

If you can’t stand that comparison maybe your beloved President shouldn’t have appealed to that portion of his voter base.

Anonymous Coward says:

Re: Re: Re: The "don't wear a short skirt problem"

The “growing dark problem” is a bullshit term made up by idiots thinking they could fool all the people all the time. It has fuck all to do with any political system you moron.

“lawful election”
The jury is still out on that one but I think most everyone now realizes that is was not.

Anonymous Coward says:

Re: Re: The "don't wear a short skirt problem"

It’s not so much victim blaming, more than it is making a logical, rational suggestion to the victims and those who would be victimized. How is it “victim blaming” to make a helpful suggestion on how to be better prepared next time? By your definition, the EFF are a bunch of victim blamers for publishing this:

Yes, ideally these problems need to be fixed at the government level. But guess what, they’re fucking NOT being fixed right now, therefore it’s YOUR responsibility to use your damn brain and develop a sense of vigilance.

Complaining about your rights being violated is good — by all means, protest the hell out of this stuff — but don’t act like your rights are some kind of magical shield that can never be penetrated. There are murderers, rapists, hackers and corrupt government employees everywhere. Learn how to defend yourself against each specific type of threat that exists in your community. Arm yourself with knowledge of law, martial arts, weapons, surveillance technology, encryption, data storage systems, anything you can legally get your hands on. Hope that you never need to use any of it, but be prepared to do so whenever necessary.

I admire your idealism, but I’m concerned about your lack of realism. Legally, nobody can enter your home without your permission, but I’m willing to bet you still lock your doors.

Since you mentioned the “short skirts” problem, I’ll address that too, since so many people get this shit wrong. First of all, go ahead and wear whatever you like, that’s your freedom. However, don’t expect rapists to leave you alone just because the law says so if you’re stumbling through alleys in the roughest neighbourhood of your city at 2:00 AM, alone, drunk on eight beers, completely unarmed and staring at your phone instead of looking around and being aware of your surroundings. I call that stupid, and a rapist calls that an opportunity. The smart thing to do would be to expect trouble and be prepared. Travel with friends, get a cab, limit your drug intake, take a longer but safer route, carry a .22 in your purse if the law permits it, that sort of thing.

It’s not your fault if bad things happen to you. It IS your fault if you consciously make a choice to refuse to be safe, smart and realistic, just because it doesn’t sync up with your political and social ideology.

Anonymous Coward says:

Re: Re: Re: The "don't wear a short skirt problem"

Yeah, rape is ok because of what the victim was wearing. I’ve heard this before and it is bullshit. Your post does nothing to address the problem as it is simply attempting to rationalize.

“stumbling through alleys in the roughest neighbourhood of your city at 2:00 AM”

fyi – this is not the situation in which most rap[es occur.

“alone, drunk on eight beers, completely unarmed and staring at your phone “

and this further points out the silliness of your hypothetical situation. Did you forget to mention the money hanging outta yer pocket or maybe the boob hanging outta yer bra? I realize it is exhausting coming up with these scenarios depicting dumb people in a feeble attempt at rationalizing victim blaming – but come on man, I know you can do a better job than this.

A .22? Even pimps carry larger than that.

Look, I get what you are saying, but it does not help.
Seriously, it is bullshit.

Anonymous Coward says:

Re: Re: Re:2 The "don't wear a short skirt problem"

Nowhere in my post did I say “rape is ok”. I understand, though. You are just emotionally reacting in the way you were programmed to, it’s not your fault that you can’t be logical about this.

I only described one, highly-exaggerated situation in which rapes occur, in order to demonstrate a point. I’m not going to bother doing the thinking for you where a person could defend themselves in an alternate setting. That would be a waste of my time, because you have been programmed to believe that giving advice to a victim is equivalent to condoning the atrocities committed against them.

I suggested a .22 because it’s easy enough for anyone to handle, even a 90-pound socialite with spaghetti arms. It’s not a nerf gun, it’s a real gun that fires bullets. Did you know that bullets can stop and kill people regardless of how big they are? Who would have thought?

Anonymous Coward says:

One bit of jursidputance I would love to see

Whenever ‘national security’ comes up in an argument judges are to assume that the action in question is attempted with bad face to try to unconstitutionally seize power by reducing it to a my-way-or-the-highway existential threat ‘either we torture puppies of suspects to coerece confessions or AMERICA IS DESTROYED FOREVER!’.

Either that or amend the definition of treason to include national security as an argument. That phrase needs to go die in a dumpster fire along with ironically ‘fire in a crowded theater’ which has its origins as justification for banning antiwar protests.

That One Guy (profile) says:

National Security = 'Yeah, we have nothing.'

If ‘national security’ can be threatened by people taking pictures of activity taking place in public, then they are basically admitting that there is no security to be found, and they are so grossly incompetent that a simple set of working eyes is enough to damage ‘national security.’

That being said exactly what do they plan to do to deal with actual criminals with working eyes who are capable of remembering things for later, or criminals that are willing to pretend to be friendly to them in order to get close enough to do something?

Why, it’s almost as though the ‘national security’ excuse is bullshit, nothing more than ‘refusal to grovel sufficiently’ wrapped up in Important Sounding Words.

Anonymous Coward says:

The simple fact of the matter is, this is America, and as an American, you are protected by the constitution. The Supreme Court already ruled that Public Photography is not a crime.

You have every right to record anything you can see so long as you are on Public Property. You have no expectation of privacy when you’re in public. If you don’t want people recording what you’re doing, Put a wall around it!!!

CBP does act like THUGS!!! They have ZERO right to take a person’s camera, let alone to delete anything. In fact, I think a group of people in the area should go to these checkpoints and record the F out of them. Do it every few days. I’d also make sure that you are recording them LIVE on the Internet so that if they Delete anything, it doesn’t matter.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...