How Trump’s first administration threatened press freedom at the border

If you like this post, sign up to get The Nuance newsletter delivered straight to your inbox on the third Sunday of every month!

With Donald Trump set to return to the White House next year, there’s a lot of speculation about how the president-elect will address what has long been his signature policy issue: immigration. 

The truth is, no one really knows whether Trump will follow through on his campaign promises to “seal” the U.S.-Mexico border and deport millions of people. Nor does anyone know whether his administration will threaten press freedom as part of its effort to make those policies a reality.

What we do know, however, is that the U.S. Department of Homeland Security during Trump’s first administration used its significant investigative and enforcement powers in ways that impacted press freedom. For example, DHS monitored journalists covering the border, attempted to obtain the identity of journalists’ confidential sources within the government, and sought to unmask an anonymous social media account criticizing the department’s policies. 

In case you missed those (or forgot about them), here’s a recap.

Secondary screening of journalists covering immigration

During the first Trump administration, NBC 7 San Diego broke the news that journalists covering immigration had drawn the attention of DHS. Documents leaked to NBC 7 showed that federal officials created a watchlist of “Suspected Organizers, Coordinators, Instigators and Media” in connection with DHS’s monitoring of a large “migrant caravan” traveling from Central America to San Diego.

That watchlist included 10 journalists, along with attorneys and immigration advocates. It included “dossiers” on those journalists and was eventually used to single out reporters for secondary screening at the border. But the watchlist included no information to suggest that the journalists included had done anything to warrant extra scrutiny, other than gather and report the news about the migrant caravan. 

In a letter to civil liberties groups defending the agency’s actions, U.S. Customs and Border Protection, the largest law enforcement agency at DHS, wrote that it was “investigating possible violations” of a law that barred “encourag[ing] or induc[ing] an alien to enter the United States.” 

(If this law sounds familiar, it is likely because the U.S. Supreme Court heard a case — United States v. Hansen — challenging its constitutionality last year. We wrote about it in this newsletter, and the Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case. The Supreme Court upheld the law, but narrowed it, because a majority of justices agreed that it would be too broad to withstand constitutional scrutiny if read literally. Justices Ketanji Brown Jackson and Sonia Sotomayor dissented, citing our brief to show the government had a history of reading the statute to justify the surveillance of “journalists reporting on an important topic of public concern” at the border.)

After NBC 7 San Diego published its piece about the watchlist, a reporter there sent DHS a Freedom of Information Act request seeking records related to the secret border watchlist and the department’s surveillance of journalists. The department failed to turn over those records, so NBC 7 San Diego and its reporter Tom Jones filed a lawsuit, represented by Reporters Committee attorneys. 

As a result of the lawsuit, the department and its components (including CBP) produced records that confirmed the government was targeting journalists based on newsgathering activities. Conduct such as “capturing images and documenting [an] event” and using “professional photography equipment” to document border crossings raised alarm bells at CBP. Records from the lawsuit also reference criminally prosecuting journalists for newsgathering at the border, under the encouragement-and-inducement law. Officials said that their surveillance of the news media would make a “good start toward a case against them hopefully.” 

Seeking confidential source information from a journalist 

In addition to scrutinizing journalists at the border, agents at DHS also sought to investigate national security “leaks.” 

For instance, in 2017, reporter Ali Watkins was questioned by a CBP officer who did not disclose his identity and attempted to obtain information from her about her sources. According to a New York Times report, the agent presented her with personal information and told her “It would turn your world upside down” if this ended up in The Washington Post. 

Reporters Committee attorneys and the Committee to Protect Journalists filed a Freedom of Information Act lawsuit after CBP refused to disclose records to determine whether the agent had used access to an internal database to obtain information about Watkins’s travel history. The precise answer remains unclear, but the lawsuit is still ongoing and CBP has already produced several hundred pages of documents that shed light on the investigation.

Unmasking an anonymous social media account

In 2017, CBP tried to unmask an anonymous Twitter (now X) account — @ALT_uscis — that criticized the administration’s immigration policies and claimed to be run by a federal employee. CBP did so through an administrative subpoena directed at Twitter requesting “all records” about the account. The subpoena was issued under a statute that gives CBP the authority to demand documents related to its oversight of merchandise imports and other customs issues, which the @ALT_uscis subpoena was not, on its face, remotely connected to. 

Twitter resisted the subpoena and filed a lawsuit against CBP arguing that, among other defects, the subpoena was unconstitutional. The lawsuit drew a great deal of public attention, and eventually CBP withdrew the subpoena. Reporters Committee attorneys later filed a FOIA lawsuit for records related to the subpoena, which uncovered internal communications within CBP where agency officials repeatedly misstated their legal authority under the statute to issue subpoenas related to customs matters. 

Other DHS components have also used the agency’s power to issue customs-related subpoenas improperly. In 2020, for instance, ICE sent a summons to BuzzFeed News in an effort to force the news organization to identify its sources for an article about the first Trump administration’s deportation policy. Like Twitter, BuzzFeed resisted the demand and wrote about it. Days later, BuzzFeed reported that the outlet had received a statement from ICE saying it would not enforce the summons.

As regular readers of this newsletter surely know, the Department of Justice in 2022 revised its internal guidelines to expressly prohibit the issuance of subpoenas and use of other investigative tools against journalists and news organizations acting within the scope of newsgathering – with only very narrow exceptions. While this change can be undone by the next administration, DHS as a whole has no such rules governing the use of its law enforcement and investigative powers to seek records from or of journalists. This is concerning, given that it is the largest federal law enforcement agency in the country. (U.S. Immigration and Customs Enforcement, one of DHS’s components, does have internal media guidelines, weaker than DOJ’s, which Reporters Committee Policy Director Gabe Rottman has written about here. But those can also be changed by a new administration.)