Journalist Ed Ou has crossed borders as a reporter in some of the most dangerous conflict zones in the world. But last month, he was shocked to find himself denied entry to the United States on his way to cover the Dakota Access Pipeline protests on the Standing Rock Indian Reservation in North Dakota.
"It’s very sad because I spent the last 10 years working in very authoritarian regimes in the Middle East where we do have to be very careful about the fact that we are journalists," Ou told me this week. "So I usually have to be very careful in places like that, and I didn’t think that I would have to do the same thing in the States. That’s the last place I should have needed to do that."
He said U.S. Customs and Border Protection at the Vancouver International Airport questioned him for six hours on October 1, at one point confiscated his three cellphones, and photocopied pages out of his personal journal and reporter's notebooks. He wrote about his experience in a lengthy post on Facebook this week.
The border agents allegedly told Ou he had to unlock his phones for them to examine–he refused, explaining that as a journalist he has a responsibility to protect his sources. Those agents denied him entry, purportedly telling him they didn't need to give him a reason, ultimately explaining that Ou had "insufficient paperwork." Ou says he consulted with a Canadian media lawyer, who told him he shouldn't have had any problem crossing to the U.S. temporarily to cover a story.
"They told me that they need me to open up my cell phones to make sure there were no pictures of me posing next to dead bodies. That’s exactly what they said," Ou told me.
This week, the ACLU sent a letter to the Department of Homeland Security on Ou's behalf, expressing concern over the demands made by CBP, the wider implications of allowing a situation in which border agents have the unrestricted ability to search reporters' phones, and to turn foreign reporters away from the U.S.:
They're requesting written explanations as to why Ou was interrogated and why he was denied entry to the U.S., as well as assurances that this experience and his journalistic work will not be used against him if he tries to travel to the U.S. in the future.
Ou says he's not sure why he specifically was detained but that many of the agents' questions focused on his plans to cover the protest camps at Standing Rock, in addition to asking about his work in places like Iraq.
"They asked me why I’m so interested in covering Standing Rock, and Indigenous issues. They asked me if I had any claims to Indigenous status, which I don’t," said Ou, who has been covering Indigenous health care in Canada and the U.S. for the Canadian Broadcasting Corporation. "They asked me why I would travel all the way from the Middle East to Standing Rock, and I told them I’m not working in the Middle East right now, I’m on different assignments. They asked me who I knew at Standing Rock, they asked me what kind of filming I’d be doing. Questions like that."
The department has not responded to the letter. In response to a request for comment from Fusion, the Department of Homeland Security said they do not discuss individual cases, and did not respond to a request for comment on the broader concern about foreign journalists' access to report on stories unfolding in the United States.
They asserted in their statement to Fusion that "all international travelers arriving to the U.S. are subject to CBP inspection."
"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," the statement said.
The ACLU says that CBP should have to abide by the same rules as any other law enforcement agency: to be able to search only with reasonable cause for suspicion and with a warrant.
"The treatment of Mr. Ou was neither 'appropriate' nor 'necessary'… CBP had no legitimate cause to interrogate Mr. Ou at such extraordinary length about his professional activities, to search his electronic devices, or to copy his personal diary," the ACLU letter reads.
Ou says that as a foreign correspondent, he's concerned about what this could mean for people living or working under foreign governments with more openly hostile attitudes toward journalists if the U.S. is setting the precedent of allowing reporters to be interrogated at the borders.
"In authoritarian countries where they would by default be able to search the cellphones of activists, journalists, humanitarian aid workers, the U.S. will not be able to have any moral high ground to say that this is not OK," he said.
His suggestion to journalists, especially foreign journalists, planning to report on American stories? Leave your phones off when you're crossing the border, and use secure messaging apps like WhatsApp and Signal to communicate with sources.
"They can just capture your data. Everything on your cellphone. And your cellphone has absolutely everything about your life. That’s a lot of power you’re giving the government under the auspices of security," he said.
Correction: this post has been updated to accurately reflect Ou's comment about his work in the Middle East