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When reporter Max Blumenthal went to a cafe in Tehran one night a few weeks ago to upload videos from his reporting on the funeral of Iran’s supreme leader Ali Khamenei, he began seeing social media posts from Trump ally Laura Loomer targeting him, including one that suggested he should be “taken off the plane by US Marshalls when he lands back in the US … [and] detained”.
“I began to prepare myself for being harassed on my return,” Blumenthal said.
Effectively, that’s what happened, sparking a legal fight that freedom-of-the-press advocates say shows the determination of the Trump administration to crack down on members of the media whose reporting it disagrees with.
On 10 July, border batrol agents at Virginia’s Dulles airport flagged Blumenthal, founder of the independent outlet the Grayzone, for a “secondary inspection”. Agents asked him how he had paid for his trip to Iran, whether he knew the people who had hosted him and whether he had plans to return.
They asked to see his two phones. He declined to give them the passwords. They seized the phones, but not his laptop or digital cameras.
The federal agency returned the cell phones a week later – less than 24 hours after the American-Arab Anti-Discrimination Committee filed an emergency motion in district court seeking their return.
The US federal government said they couldn’t get into the phones and returned them, and that therefore the motion was moot. But Blumenthal went back to court on Wednesday and got a judge to agree that the government must prove it – by supplying evidence of who had his phones, when they had them and what they did to them. Federal judge Leonie M Brinkema gave the government 14 days to respond.
Blumenthal’s treatment and case pose “serious constitutional problems”, said Seth Stern, chief of advocacy at the Freedom of the Press Foundation. “The Trump administration is finding any excuse it can to target journalists it dislikes, and border searches are one more play in the playbook.”
It is the second case concerning cell phone seizures at US airports to hit federal courts in recent weeks, after another involving an activist against the Atlanta police-training center known as “Cop City” had its first evidentiary hearing.
Brinkema cited a recent fourth district ruling that distinguished a basic cellphone search – as in, the phone’s owner allows an agent to open the phone – from an “advanced” search, where “equipment, wired or wireless, [is used] to copy and/or analyze the contents of an electronic device”.
This is what federal agents sought to do with Blumenthal’s phones. “I believe now under fourth circuit case law, a search warrant would be required for that degree of intrusion into a cell phone,” Brinkema said, according to a transcript of the proceedings. No such warrant was produced for Blumenthal.
The incident is also the second recent case involving the federal government apparently seeking to discover the sources of journalists, after its failed attempt to subpoena New York Times reporters.
Jenin Younes, president of the American-Arab Anti-Discrimination Committee, noted that the border patrol agents seized only Blumenthal’s phones. “They didn’t take his laptop or digital camera,” she said. “That suggests they’re interested in contacts, sources, personal communications – maybe even tracking data.”
Brinkema mentioned the Times case in Wednesday’s hearing. “[G]iven the fact that this plaintiff is a reporter, this case has particular concern to the court because there’s been so much recently in the ether about attempts by the government to intrude upon a reporter’s right to report,” she said.
“And, you know, just recently in New York, we had the issue of the subpoenas that were issued to the New York Times reporters,” she continued. “I don’t think that can be overlooked.”
“We want to know what they did with [Blumenthal’s] phones,” Younes said. “We want to make sure the administration recognizes the serious privacy interests at stake in taking anyone’s phones – especially journalists.”
The judge suggested that Blumenthal could “probably have an expert take a look at his phones to see if there’s any indication […] they were somehow tampered with or accessed in some way”. Blumenthal said he’s “working on that – but it costs a lot”.
Younes pointed out that many other US journalists were in Iran to cover Khamenei’s funeral, including mainstream outlets like CNN and the Times – but there’s been no public disclosure of any other reporter being detained upon returning.
The posts by Loomer “raise the specter he’s being targeted for his views, for his journalism. This strengthens the first amendment aspect of his case.”
Blumenthal said the views that make him a target include him being a “Jewish anti-Zionist”.
Wednesday’s hearing, he said, was positive not just for him. “It has positive consequences for other journalists who have faced or will face this kind of repression, from an administration that isn’t responsive to the rule of law,” he said.
At the same time, the information he is seeking may turn into what Younes called “a protracted battle”, since the government’s attorney raised the issue that some of what was done with his phones may be “law enforcement privileged information”.
“You explain how this is done, and the individuals who we are trying to get information from are able to ‘beat it’,” he said.
