#ed ou

By Daniel Victor, NY Times, Dec. 2, 2016

Ed Ou, a Canadian freelance photojournalist, spent 10 years covering the Middle East, Africa and Central Asia. He endured aggressive interrogations at border crossings in some of the world’s most authoritarian nations.

But he says a recent confrontation at the United States border has left him shaken. The incident has been criticized by advocates of privacy and press freedom.

Mr. Ou, 30, said he was detained on Oct. 1 for more than six hours when he tried to fly from Vancouver, British Columbia, to Bismarck, N.D., to cover the protests of an oil pipeline project near the Standing Rock reservation.

He was ultimately denied entry, and he said though he was not given a reason, he was told his name matched that of a “person of interest.” During the hours of detention, he was asked to describe how and why he had traveled to each country he had visited in the past five years, and questioned about whether he had seen anyone die.

Agents requested access to his phones and to look through his photos so that they could make sure he was “not posing next to any dead bodies,” he said. When he refused, citing the need to protect his sources as a journalist, they took the phones, he said.

The phones were later returned and showed signs that the SIM cards had been replaced, he said. Giving up the contents of his private phone would be akin to a doctor giving up confidential patient information, he said.

“I’m not going to open my phone for any other country,” Mr. Ou, a New York Times contributor who was an intern for the news organization in 2010, said in a phone interview on Thursday from Nunavut, Canada. “I can’t be expected to do the same for the U.S.”

Jason Givens, a United States Customs and Border Protection spokesman, declined to comment on Mr. Ou’s case, citing privacy laws. But he said agents had inspected 4,444 cellphones and 320 other electronic devices in 2015, amounting to 0.0012 percent of the 383 million arrivals.

“Keeping America safe and enforcing our nation’s laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the U.S.,” Mr. Givens said in a statement on Thursday.

The American Civil Liberties Union wrote a letter to Customs and Border Protection and the Department of Homeland Security, protesting Mr. Ou’s treatment and calling it “harassing and exceptionally intrusive.” It demanded an explanation of his detention, and asked for a guarantee that any copies of his belongings had been destroyed.

Agents made photocopies of several documents in his possession, including a personal journal, Mr. Ou said.

It should have been clear to agents that Mr. Ou was a working journalist who had traveled freely to the United States in the past and had longstanding connections to American news agencies, Hugh Handeyside, a lawyer, wrote in the A.C.L.U. letter.

“We believe that C.B.P. took advantage of Mr. Ou’s application for admission to engage in an opportunistic fishing expedition for sensitive and confidential information that Mr. Ou had gathered through his news-gathering activities in Turkey, Iraq, Somalia and elsewhere,” he wrote.

Electronic privacy advocates said the episode illustrated a governmental loophole that’s especially problematic for journalists but that could apply to anyone: Without a warrant, American border agents can legally search digital devices that they wouldn’t be able to touch anywhere else.

The Fourth Amendment protects against unreasonable searches and seizures, but the Supreme Court carved out space for border patrol agents to examine personal property without a warrant, said Sophia Cope, a staff lawyer for the Electronic Frontier Foundation, a nonprofit organization that defends civil liberties in the digital age.

Security officers at United States airports don’t need a judge’s permission to search a traveler’s backpack before he or she boards a flight the way a police officer would when stopping someone on the street. But it has to be for the narrow purpose of assuring immigration or security compliance, she said.

The privacy implications of examining a cellphone are entirely different from rifling through a suitcase, which contains limited personal information, Ms. Cope said. The law regarding digital devices is “really unsettled,” she said.

“The government is saying the old rule at the border applies to digital devices, even though our entire lives are on these devices,” Ms. Cope said.

A Homeland Security policy from 2009 says that searching digital devices requires the owner of the digital device to be present during the search, though it doesn’t guarantee the owner can monitor the search. Agents can make copies of the data, but the copies must be destroyed within seven days if there is no probable cause to seize it. Devices can be detained for up to five days, barring “extenuating circumstances.”

The policy’s assurance that agents would “protect that information from unauthorized disclosure” is not particularly comforting for journalists, who fear the contents of their devices could unmask sources who would be in danger if the government learned their identities.

Maria Abi-Habib, a reporter for The Wall Street Journal, recounted a similar episode in a Facebook post in July after she was detained at Los Angeles International Airport and asked to turn over her cellphones. The request was eventually withdrawn after Ms. Abi-Habib, a United States citizen traveling on an American passport, objected and asked to call lawyers for her newspaper.

Trevor Timm, the executive director of the Freedom of the Press Foundation, said that for journalists like Mr. Ou who have worked in the Middle East to be treated with suspicion, potentially forcing them to break promises of confidentiality to sources just to enter the country, sets a poor international precedent, he said.

“If this is requisite for journalists who are not U.S. citizens to enter the U.S., that is an enormous violation of press freedom,” he said.

Mr. Ou was assigned by the Canadian Broadcasting Corporation to cover the Standing Rock protests as part of a project on indigenous health care in North America. He said the agents knew he intended to cover the protests, which have prompted the police to use rubber bullets, pepper spray and water cannons against hundreds of people.

The recent abusive border search of a Canadian photojournalist should serve as a warning to everyone concerned about press freedom these days. 

Ed Ou is a renowned photographer and TED senior fellow who has traveled to the United States many times to do work for The New York Times, Time magazine, and other media outlets. Last month, Ed was traveling from Canada to the U.S. to report on the protests against the Dakota Access pipeline in Standing Rock, North Dakota, when he was taken aside for additional inspection.

What came next left him questioning what he thought he knew about the U.S. government and the values it stands for, and we’re officially protesting to the Department of Homeland Security and U.S. Customs and Border Protection.

Although Ed clearly identified himself as a journalist on his way to Standing Rock, the CBP officers detained him for more than six hours and subjected him to multiple rounds of intrusive interrogation.

They questioned him at length about his work as a journalist, his prior professional travel in the Middle East, and dissidents or “extremists” he had encountered or interviewed as a journalist. They photocopied his personal papers, including pages from his handwritten personal diary.

They also asked Ed to unlock the three mobile phones he uses to communicate in different locations worldwide. Ed told them he couldn’t agree to do that because of his ethical obligation as a journalist to protect his confidential sources. The officers took the phones, and when they returned them several hours later, the tamper tape covering the phones’ SIM cards was altered or missing, suggesting that the officers had removed and possibly copied the cards.

After all that, the officers denied Ed admission to the country without giving him a valid reason. One of the officers said he couldn’t provide any details. Another officer said that Ed’s refusal to grant access to his mobile phones “did not help.”

Journalist Ed Ou has travelled the world for his work, and he's had his share of run-ins with authorities in Somalia, Bahrain, Yemen and Egypt.

But he wasn't expecting problems getting into the United States. In October, the CBC assigned the freelance reporter to cover the protests in Standing Rock, N.D., over the Dakota Access Pipeline.

He didn't make it past U.S. Customs and Border Patrol at the Vancouver Airport, where his phones and notebooks were inspected by agents.

In a statement to CBC, Customs and Border Patrol said it doesn't discuss individual travellers, but noted that all travellers are subject to inspection, which can include electronic devices.

Here is part of Ed Ou's interview with As It Happens host Carol Off. The interview has been edited for length and clarity, but you can listen to the full discussion by clicking on the player above.

Carol Off: What happened when you tried to go through customs?

Ed Ou: I was trying to fly from Vancouver, Canada, and immediately when I put my ... NEXUS card through the booth I got directed to secondary. For me, I've been working in the Middle East the last 10 years, so this is quite normal.

One of the first questions they asked me was, 'When was the last time you were in Iraq?' [and] 'What are you planning on doing in Standing Rock?' I was very forthcoming because as a journalist, especially working in the Middle East, a lot the time we have to be careful of what we say. Journalism is mostly not allowed in a lot places in the Middle East. But being in the U.S., I figured, this is a democratic country, this is somewhere that respects privacy of journalists and respects freedom of the press.

And so, I was very straightforward, I told them I'm going to Standing Rock to cover these protests ...They gave me a list of every country I'd travelled to in the last five years and they told me to fill in everywhere I'd been and why I had been to these places.  

March 5, 2010 - Boroma, Somalia 

Exhausted men sleep in the desert after traveling all night on muddy roads and in pouring rain. Every year, thousands of people risk their lives crossing the Gulf of Aden to Yemen to escape conflict and poverty in the Horn of Africa.

Ed Ou

Somalian Child Soldiers

Ed Ou

Somalian Child Soldiers

Ed Ou

Somalian Child Soldiers