At first blush, a lawsuit filed last week by the ACLU on behalf of a sociology professor at Indiana University wrongly detained by U.S. Customs and Border Protection seems to be about whether CBP is exceeding the limitations on its police powers, and detaining US citizens for purposes unrelated to customs and borders.
That’s bad, but unsurprising in light of the history of abuse of limited administrative search powers as a pretext for unrelated police purposes by CBP and other DHS components, notably the TSA.
What’s more unusual, however, is the complaint that the DHS is using email messages, presumably obtained from the NSA (unless the DHS has some email interception program of its own) as the basis for detention and interrogation of US citizens who aren’t trying to travel or ship any goods across US borders.
And what was the subject of this warrantless custodial interrogation of a non-traveling US citizen by armed “Customs and Border Protection” officers, based on email intercepts? Her sex life.
No, we’re not making this up.
Professor Christine Von Der Haar of Indiana University tells the story in her complaint, in an interview with the Bloomington Herald-Times in 2012 at the time of the bizarre CBP doings that led to her lawsuit, and in a video interview with the Indianapolis Star last week when the lawsuit was filed.
A few years ago, Dr. Von Der Haar, a US citizen, reconnected online with Dimitris Papatheodoropoulos, a Greek freelance transport and logistics manager and consultant who she had been friends with as a teenager, 40 years earlier, at an international school they both attended in Switzerland. After a year’s exchange of email, some of which Dr. Von Der Haar says was “flirtatious and romantic in nature”, Mr. Papatheodoropoulos arranged for a visit to Dr. Von Der Haar in Bloomington during her summer break from university teaching.
Von Der Haar believes her friend is a victim of a cultural misunderstanding. His emails signed off “I love you. I miss you. I kiss you.” Marriage, though, was beyond the pale for two adults in their mid-50s who hadn’t seen each other for decades, they say.
Sure, his language is flowery, but Von Der Haar laughs about it, slightly embarrassed: “We’re silly. He’s a Greek man. What can I say?.”
Mr. Papatheodoropoulos obtained a 10-year, multiple entry B1/B2 business and tourism visa to the US, allowing him to consult with business associates and negotiate contracts as well as visit friends. Since he works as a freelancer, and wasn’t sure how long he would be staying in the US, he shipped a computer and some other electronic equipment by air freight, but removed the hard drive with his data and carried it with him.
On arrival, Mr. Papatheodoropoulos cleared US customs and immigration and was admitted to the US without incident. But when Dr. Von Der Haar took him back to the Indianapolis airport a few days later to pick up the items he had shipped by air freight, they were referred to the CBP office at the airport.
According to Dr. Von Der Haar’s complaint, armed CBP officers detained both her and Mr. Papatheodoropoulos, took them into separate rooms, and stood blocking the exit door while they interrogated Dr. Von Der Haar about, “the nature of her relationship with Mr. Papatheodoropoulos … the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other … [and] if she and Mr. Papatheodoropoulos were having sexual relations.”
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.
Dr. Von Der Haar was taken into the back room of the CBP office for questioning twice, for a total of about half an hour, while Mr. Papatheodoropoulos was questioned for “approximately 4 1/2 - 5 hours” before he emerged and was allowed to leave. His Greek passport (property of the Greek government) was confiscated without warrant, leaving him unable to leave the US even had he decided to cut his visit short, and he was “served with notice that a proceeding was initiated against him for removal from the United States” on the basis that:
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” according to the complaint. Mr. Papatheodoropoulos requested an expedited trial on these allegations, but “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 returned.”
What are we to make of this episode?
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”.