Records obtained through FOIA litigation shed light on border surveillance of journalists, activists in 2018

It’s been more than four years since NBC 7 San Diego broke the news that U.S. government agents created a secret list of journalists, activists, and humanitarian aid workers in connection with a caravan of Central American migrants approaching the U.S.-Mexico border in late 2018. The story made national headlines, prompted a federal investigation, and drew sharp criticism from civil liberties groups and press freedom advocates.

It also led the Reporters Committee for Freedom of the Press, NBC 7, and its former reporter Tom Jones to sue four government agencies after they refused to disclose records in response to requests seeking information about the surveillance operation known as “Operation Secure Line.” That litigation ultimately forced the government to begin producing records on a monthly basis, a process that is still ongoing. To date, NBC 7 and the Reporters Committee have obtained nearly 4,000 pages of records, including memos, emails, and reports, all of which NBC 7 recently published.

As Jones reported for NBC 7 in March, the records “offer a glimpse into Operation Secure Line’s inner workings and priorities.”

Reporters Committee attorneys recently used some of the records to make arguments in a friend-of-the-court brief submitted to the U.S. Supreme Court. In United States v. Hansen, a case challenging the constitutionality of a federal law barring “encouraging or inducing” unlawful immigration, Reporters Committee attorneys argued that the records obtained through the Freedom of Information Act litigation show that government officials hoped that monitoring journalists could help them bring “criminal aiding and abetting” charges against members of the news media. The Reporters Committee’s brief was even referenced during oral arguments in the case.

“The allegations that the government surveilled members of the news media, including the allegation that the government had in some instances placed alerts on reporters’ passports, are disturbing and demand public scrutiny,” Katie Townsend, the Reporters Committee’s deputy executive director and legal director, told NBC 7. “While the release of these records is a victory for transparency, the litigation is ongoing, and we anticipate that additional information will come to light.”

Even though Jones is now a reporter for NBC Chicago, he continues to report on this story. The Reporters Committee recently spoke with Jones about some key takeaways from the 4,000 pages of records, his experience working with RCFP attorneys, and NBC 7’s recent decision to share everything the government has turned over to date. (This interview has been edited for length and clarity.)

After you published your initial story about Operation Secure Line in March 2019, you followed it up with public records requests to multiple federal agencies, including U.S. Customs and Border Protection. What exactly were you hoping to find through those records requests?

What we were trying to find really was just kind of the scope of this whole surveillance effort. How wide did it go? Did we have the only list? Or was this list longer? Maybe we had only gotten a portion of it. And also just how it came together in the first place. What was the reason for its creation? We were getting conflicting statements from CBP as far as why these people were on a list, and anytime we would find evidence that contradicted what they were telling us, we would get a new statement. So we thought that filing a FOIA request for the emails and internal meetings and memos before and after this list was created would kind of show us how it came together and whether it was legal.

How exactly did you connect with Reporters Committee attorneys?

It’s actually kind of a funny story. The day after we published the original story, I had gone to the [National Institute for Computer-Assisted Reporting] conference through [Investigative Reporters & Editors]. I guess I should have suspected that the story would blow up and get a lot of attention, but I hadn’t thought about that. I just hit publish and got in my car to go to LA for this conference. So while I’m there at the conference, I’m walking around and Katie Townsend approached me and said, “Hey, you just published this story. Can we please talk?” And [RCFP Senior Staff Attorney] Adam Marshall was there, too. So the connection actually started right afterwards.

What was it like working with Townsend, Marshall, and Staff Attorney Gunita Singh?

It was such a pleasure working with them. Every step of the way they have been our advocate. And the “our” in that sentence is the public. There were so many different agencies involved, from CBP, Border Patrol, ICE to the FBI, even our local San Diego County Sheriff’s Department. Getting to the heart of it and figuring it all out, we really needed more information, we needed these records.

I’m just so grateful for their support. The truth is that journalists don’t always have the means and resources to take on a case like this. It’s so in depth. There are so many different hearings. It’s just like any discovery process where it can take months, years. I mean, here we are four years later, and the case is still pending. So that just gives you an idea of the scope of the work that goes into it. I’m just so fortunate that they found me at the conference that weekend and that they had an interest here. I think their interests were absolutely valid because there were 10 journalists on this list who had broken no laws. It’s not like they were arrested for something they had done or that they had been aiding illegal crossings or anything like that, yet they were subjected to increased scrutiny just because of their proximity to these caravan members and a potential violation of their First Amendment rights.

What have you learned from the 4,000 records you’ve obtained so far through this litigation?

You would think these federal agencies that are tasked with securing our border are organized, but the truth of the matter is that the surveillance list was kind of put together haphazardly. It was really piecemeal. Agents said, “Oh, you got a name? Let’s throw it on there. Let’s look into this person, or let’s deny their entry.” [Decisions] were really based on flimsy information.

So it was very unorganized. It seems that there was a lot of urgency and fear, and that just led to kind of this widespread do whatever we want to do without being in accordance with U.S. law. I guess I would have expected that there would be more communication about the internal policies, and that it would be by the book, very structured and organized. But in this case, it wasn’t.

What are some questions you still have that you hope future document productions will answer?

To date, we don’t know if anybody was held accountable for any of these actions. Unfortunately, in a lot of the records we have received, all names are redacted so it’s been hard to piece together who would be held accountable in those situations. We definitely saw that in the emails after our reporting that they were talking about it a lot. And in some cases, some alerts were actually removed after our reporting.

We also don’t have clear explanations for why a lot of the people were put on this list. That’s one lingering question. I think those answers are out there, and I think maybe we’ll be able to get them someday. You would think we would have gotten them by now, four years later, and with all of the scrutiny on this, but there are still some question marks there.

And that’s another reason why we decided to release everything we have because we fought for this information for the public. And you never know if there is a detail somewhere buried in all of those emails that may not be apparent to us its meaning, but for someone else out there, it may mean a whole lot. So by releasing all of these records, hopefully it will help us in answering these lingering questions.

Read all of the Operation Secure Line records produced to date.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.