A recent lawsuit filed by the American Civil Liberties Union (ACLU) is shedding light on chilling practices by the United States Department of Homeland Security’s (DHS) Customs and Border Patrol (CBP). The story unfolded something like this: Christine Von Der Haar, a senior lecturer in the sociology department at Indiana University, reconnected with an old friend she had met while the two were part of a program with CollÃ¨ge du LÃ©man, an international school in Geneva, Switzerland. Her friend, a Greek national by the name of Dimitris Papatheodoropoulos, was now a freelance transport and logistics manager and consultant, enabling him to work on location — an ideal situation that enabled the two, who hadn’t seen one another in 40 years, to reconnect not only online, but in meatspace.
We all know how some of these reconnections go. Over the year the two spent corresponding, a wonderful flirtation developed. Finally, in June, 2012, Papatheodoropoulos arrived in Indianapolis to work and pass the time with Von Der Haar, who was on summer break. Having a 10-year, multiple entry B1/B2 business and tourism visa to the country, Papatheodoropoulos cleared customs and immigration without incident and was soon catching up with his long-lost friend and possible summer squeeze.
Unfortunately for both of them, Papatheodoropoulos — who also planned to see some clients and get work done while he was in the U.S. — had shipped a computer server and a few other work items that were arriving separately. When he and his host went to the airport to pick them up, the airline in charge told them that they needed to see Customs and Border Patrol to do the required paperwork. However, when they got to the CBP office, they were told to come back in three days.
Things got really weird when Papatheodoropoulos and Von Der Haar returned. First, a CBP agent seemingly randomly asked them whether they were planning to marry. Then, they were separated. First, Papatheodoropoulos was taken for questioning, then agents returned and took Von Der Haar into a separate room to question her. According to her complaint, they never told her she didn’t have to answer their questions or that she could leave at any time. The agents interrogating her physically blocked her exit throughout the questioning.
That’s not the shocking part — the shocking part is the focus of the questioning. The agents wanted to know about the “nature” of her “relationship” with Papatheodoropoulos. The questions focused on the content of e-mail messages that Von Der Haar and Papatheodoropoulos had exchanged over the course of the previous year. Agents asked Von Der Haar about parties Papatheodoropoulos had told her about and then whether she and Papatheodoropoulos were “having sexual relations.”
Here’s the thing: the server that Papatheodoropoulos had sent separately did not contain a hard drive. The drive was on his person when he initially cleared customs. Thus, it is unlikely that agents accessed this information through his computer. The only way that agents could know the nature of the e-mails that were exchanged between them is through some kind of surreptitious electronic monitoring that doubtfully involved a warrant. What’s more, according to the complaint, the agents in charge admitted that they had read the e-mails on which they based their questions.
They questioned Von Der Haar twice that day, for a total of thirty minutes. The agents questioned Papatheodoropoulos for almost five hours before they let him go — without his passport. CBP took it and served Papatheodoropoulos a notice stating that CBP was initiating a motion for his removal from the U.S. on the basis that he had misrepresented his intentions when obtaining his B1/B2 visa, adding: “It is your intention to immigrate to the United States, you abandoned your foreign residence, you intend to overstay your admission to the United States.”
This was unfounded and harassing. After requesting an expedited trial through the Greek Consulate in Chicago, Papatheodoropoulos found the removal action would not proceed and was returned his passport. He left the country in August and hasn’t returned (and who could blame him?).
Papers Please, a blog run by the Identity Project, which fights for the right of Americans to move freely within their country, brings up some good points:
First, CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.
Second, unless this incident has exposed some previously unsuspected DHS email interception program, it seems likely that CBP obtained copies of email between Dr. Dr. Von Der Haar and Mr. Papatheodoropoulos from the NSA. We know that the NSA is copying and archiving as much email as it can get its hands on. But was this email traffic flagged by the NSA as being of interest, and brought to the attention of the DHS? Or did the DHS ask the NSA to retrieve these email messages from the NSA archives, and provide them to the CBP? When, how, and on what basis, does the NSA “share” its email intercepts with the DHS?
We look forward to learning more. We won’t be surprised, though, if the government claims that intercepting email messages on grounds of “national security” and then handing them over to another government department in order to detain and interrogate an innocent US citizen about her sex life is a “state secret”.
Mike Masnick at Techdirt points out that there are other possible explanations, “various investigations may have resulted in CBP getting access to the emails separately, but it still raises serious questions about under what authority those emails were obtained and why she was then quizzed about her sex life.”
We’re excelling so much in this arena, we’re starting to encroach on Russian memes.
Header image by Klearchos Kapoutsis.