U.S. Bars Canadian Photojournalist En Route To Cover Dakota Pipeline Protests

WatchDog: U.S. Bars Canadian Photojournalist En Route To Cover Dakota Pipeline Protests

By Joe Davis, WatchDog TipSheet Editor

The Society of Environmental Journalists expressed "grave concerns" in a letter last week to U.S. Customs and Border Protection over an Oct. 1 incident in which prize-winning Canadian photojournalist Ed Ou was detained and turned back by U.S. customs agents when he tried to enter the United States to cover the Dakota Access Pipeline protests.

The case is a complex one, but appears to challenge the notion that the United States is a bastion of the free press, and has important implications for American reporters who travel overseas and may be subject to similar scrutiny upon re-entering the country.

Ou, who was on assignment for the Canadian Broadcasting Company, was detained and questioned for about six hours by U.S. Customs and Border Protection officials when he tried to board a flight from Vancouver, B.C., to Bismarck, N.D.

Canadian photojournalist Ed Ou was prevented entry at the U.S. border, effectively stopping him from covering the Dakota Access pipeline protests. [PHOTO: Joe Brusky, Flickr Creative Commons]

The American agents confiscated Ou’s cell phones and tampered with their SIM cards, confiscated and copied his personal notebooks, then ultimately denied him entry into the United States.

Ou, 30, is no ordinary photojournalist. He has covered conflict in Iraq, Yemen, Somalia, Egypt and Turkey, among other places. He has worked for Reuters and the Associated Press — and interned at The New York Times. His many awards include the Pictures of the Year International’s Global Vision Award, World Understanding Award and Photographer of the Year Award of Excellence, along with a First Place Contemporary Issues award from World Press Photo.

Ou wrote a personal account of the incident, published in TIME magazine Dec. 5, saying he had never thought to prepare for a job in the United States the way he would for one in an authoritarian country. When customs agents took him aside, they had a list of every one of the many countries he had travelled to in the past five years. They made him write a detailed explanation of what he had been doing in each country.

Ou recounted more in an interview with Trevor Timm for Columbia Journalism Review. After making him explain his foreign travels, “They asked me why I was going to Standing Rock and why I was so interested in that. They wanted to know the people I was going to meet, what I was going to cover.”

Next they took his cell phone, and he realized they were treating him as a suspected terrorist. This surprised Ou because he had entered the United States many times before without incident after his travels to the Middle East and Asia — he even had a NEXUS pass, a special card to speed passage through customs for designated low-risk travelers.

Ou wrote in TIME: “I thought maybe there was a misunderstanding, so I offered to show my press credentials and put them in touch with my editors to confirm that I was a bona fide journalist. They said it wasn’t necessary.”

Then the agents asked Ou to unlock his phones. “I told the officer that as a journalist, I have a responsibility to not share information that could compromise my sources,” he wrote. “The officer demanded my passwords and threatened that if I didn’t provide them, I could be refused entry into the country.” He declined.

The customs agents confiscated Ou’s phones, and when they were finally returned, the incident ended with the agents refusing Ou entry.  “When I asked why,” Ou wrote, “I was told the reasons were ‘classified.’”

Search provisions, visa requirements complicate case

Did the customs agents act constitutionally and legally? Quite possibly, it seems. Ou is a Canadian citizen. The incident with U.S. customs agents actually took place on Canadian soil. So the U.S. Constitution would presumably not apply.

As to the searching of cell phones (or other electronic devices), the law is different at the border. Inside the United States, law enforcement officials have to get a warrant. But at the border, they claim the right to search electronic devices without a warrant and without any suspicion of wrongdoing. That, at least, is the gist of the “border search exception,” as commonly understood. But this doctrine is still being challenged in the courts, and some judges have limited the legality of digital border searches in specific cases.

In practice, however, travelers are at the Customs and Border Protection’s mercy — or as CJR’s Timm put it: “Attention all journalists: U.S. border agents can search your phones.”

As to entry into the states, Ou’s case is complicated by another issue. Technically, the United States requires foreign journalists entering the country on assignment to have a media visa.

That is a little-known exception to the current program, under which most Canadians do not need a visa to enter. In practice, the media visa requirement is often ignored. Ou apparently did not have a media visa Oct. 1 — but CBP did not give that as a reason for denial of entry.

Slowly but surely, Ed Ou’s treatment has gotten media attention. Articles have been published by the Washington Post, BBC News, the New York Times, Fusion and the Huffington Post.

SEJ member (and photojournalist) Kathie Florsheim brought the treatment of Ou to members’ attention via SEJ’s listserve, and SEJ’s Freedom of Information Task Force then decided to send a letter of protest to Customs and Border Protection and its parent agency, the Department of Homeland Security. The letter (full text here) was sent December 13.

SEJ is not the only journalism group to protest Ou’s treatment. Canadian Journalists for Free Expression sent a letter of protest to the U.S. Ambassador Dec. 1. Reporters Without Borders, the Committee to Protect Journalists and the ACOS Alliance sent a letter Dec. 12 requesting a meeting with the Department of Homeland Security to discuss the treatment of journalists at U.S. borders.

The Committee to Protect Journalists has also published some tips for journalists crossing borders.

Ou is now being represented by the American Civil Liberties Union, which has written to Customs and Border Protection protesting his treatment. ACLU staff attorney Hugh Handeyside wrote an article calling Ou’s treatment “abusive.”

“Mr. Ou’s experience at the border,” the ACLU wrote, “raises troubling questions about whether the decision to deny him entry to the United States was either in retaliation for his work as a journalist or intended to prevent him from reporting on protests over planned pipeline construction in North Dakota. Neither of these is a legitimate reason for denial of admission.”

---

* From the weekly news magazine SEJournal Online, Vol. 1, No. 8. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.