By Mike Masnick | Techdirt | March 6, 2014
Just recently, we wrote about how the Department of Homeland Security’s (DHS) Customs and Border Patrol (CBP) has been increasingly detaining and harassing people at the border (or near the border) under highly questionable circumstances — and then refusing to comment on any of it. Instead, CBP has relied on a cloak of secrecy to live outside the law, acting out what we’ve come to expect from authoritarian police states. Recently, the ACLU filed a lawsuit on behalf of a woman, Christine Von Der Haar, who is a senior lecturer at Indiana University, after CBP detained her at the airport.
She was not entering or leaving the country. She was not even boarding a flight. She merely accompanied a friend to the airport so that he could retrieve some computer equipment that he had shipped separately a few days earlier. After detaining Von Der Haar, CBP officials, who clearly had access to some of the emails Von Der Haar and her friend had sent back and forth, quizzed her about her sex life and if she was planning to marry the friend.
CBP appeared to be concerned that the friend, a Greek national named Dimitris Papatheodoropoulos, was trying to stay in the country illegally. Von Der Haar had first met Papatheodoropoulos 40 years earlier while studying abroad, and the two had recently reconnected thanks to the internet. Papatheodoropoulos had obtained a B1/B2 business/leisure visa to the US which actually let him enter and leave the country for a period of 10 years. He came to the US for business, but while there also wished to visit Von Der Haar since they’d been catching up online.
After detaining and questioning Papatheodoropoulos for some time, CBP officials took Von Der Haar into another room and started asking questions specific to the emails between the two of them. According to the lawsuit:
Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.
This raises all sorts of serious questions. As the post at Papers Please (linked above) notes:
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.
The post also wonders how or why CBP got access to those emails, wondering if they were shared by the NSA. There are, of course, other possible explanations as 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.
The claims that officials made about Papatheodoropoulos were equally questionable. Again, from the lawsuit:
Customs and Border Protection agents seized Mr. Papatheodoropoulos’ passport.
On June 8, 2012, Mr. Papatheodoropoulos was served with notice that a proceeding was initiated against him for removal from the United States. The notice stated, in relevant part:You obtained your B1/B2 visa by misrepresenting your intentions to come to the United States to wit; 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.
None of this was true.
Mr. Papatheodoropoulos consulted with lawyers and the Greek Consulate in Chicago and the removal action did not proceed.
His passport was returned to him and he left the United States at the end of August of 2012 and has not returnedThe whole thing seems ridiculous yet again, and you can expect DHS to use its standard cloak of secrecy. I’m sure they’ll argue some sort of state secrets or national security claim to try to get the entire case thrown out.