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Lawsuit: Border checkpoint photo limits unconstitutional

A newly-filed lawsuit claims that a federal government policy limiting photography at border checkpoints and other points of entry to the United States violates the First Amendment.

The suit was filed Wednesday in federal court in San Diego on behalf of two human rights activists who claim they were briefly detained and had their photos erased after taking pictures of border crossings in California. The four local ACLU affiliates along the U.S.-Mexico border filed the case along with attorneys from the law firm of Morrison & Foerster.

A policy of the Customs and Border Protection branch of the Department of Homeland Security prohibits photography of ports of entry without "prior approval" from a senior CBP official.

"This CBP policy and/or practice continues to be an impermissible prior restraint on speech and to chill, deter, and infringe [plaintiffs'] First Amendment right to freedom of speech," according to the lawsuit (posted here).

Lawyers pressing the suit are attempting a kind of jujitsu against the Justice Department. The suit notes that in May the Justice Department issued a letter arguing that state laws limiting photography or recording of police are unconstitutional. "Recording governmental officers engaged in public duties is a form ofspeech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers," the letter said.

The issue of the right to photograph, and make audio and video recordings of police, has been a matter of contention in recent months in various parts of the country. A trend seems to be developing towards recognizing such activity as constitutionally-protected, though the local cases tend to revolve around traffic stops or arrests.

In response to a POLITICO query about the suit, a CBP spokesperson said Saturday: "U.S. Customs and Border Protection (CBP) cannot comment on ongoing litigation. CBP recognizes that travelers awaiting inspection at a port of entry will use electronic devices to communicate their status to family members, friends, or professional contacts. Due to security concerns, once a traveler begins the inspection process in the federal inspection station, CBP prohibits the use of these devices in order to ensure the safety of the CBP officer and the traveling public, and to protect against the unauthorized disclosure of information and the advancement of criminal activity.”

However, the new lawsuit stresses that the plaintiffs, Ray Askins and Christian Ramirez, were not in the process of crossing the border when they ran into trouble with CBP. People actually crossing the border have been held to have fewer rights because of the need to search people and goods entering the U.S.

Despite that distinction, if the suit is successful, it could also overturn the ban on use of cameras at customs and immigration facilities in U.S. airports. One powerful senator and avid photographer, Judiciary Committee Chairman Patrick Leahy, has insisted on the rights of the public to take photos at security checkpoints. Those checkpoints are controlled by another division of the Department of Homeland Security, the Transportation Security Administration.

The new case has been assigned to U.S. District Court Judge Thomas Whelan, a Clinton appointee.

UPDATE (Saturday, 4:56 P.M.): This post has been updated with a statement from Customs and Border Protection.