Less than 24 hours after NBC 7 Investigates published leaked documents detailing how the U.S. government created a secret database of activists, journalists, and social media influencers, Congress is reacting.
A strongly worded letter from the Congressional Committee on Homeland Security called the practice "troubling" as debate begins over the legality of such a program. It has demanded information on protocol, copies of the "dossiers" of the 59 individuals listed and explanations for each listing later this month.
"I think there's generally a high bar for doing surveillance of journalists because journalists are assumed to be protected by the First Amendment and acting in the public interest," said Professor Dan Hallin of University of California San Diego. "Normally to do surveillance of journalists you have to have some very specific reason for thinking that journalist has been a conduit for national security."
"It's not entirely clear what the motive was but being a journalist does not give rise to reasonable suspicion that you are engaged in criminal activity," said legal analyst Dan Eaton.
NBC 7 spoke with a former U.S. attorney that said in The Department of Justice there is a "bright line" in getting information from lawyers or journalists. He was also quite adamant that approval would have to come from high up -- likely either the Deputy Attorney General or the Attorney General himself.
The secret database centered around clashes at the San Ysidro Port of Entry at the end of 2018, according to the United State Customs and Border Protection. Roughly 5,000 immigrants from Central America made their way north through Mexico to the United States’ southern border. The story made international headlines.
In the months that followed, journalists who covered the caravan, as well as those who offered assistance to caravan members, said they felt they had become targets of intense inspections and scrutiny by border officials.
Leaked documents provided to NBC 7 by a Homeland Security source on the condition of anonymity confirmed those suspicions.
The individuals listed include ten journalists, seven of whom are U.S. citizens, a U.S. attorney, and 48 people from the U.S. and other countries, labeled as organizers, instigators or their roles “unknown.”
"Customs and Border Protection has broad latitude to engage in law enforcement gathering," said Eaton. "The issue here comes in whether it chills these journalists and their abilities to do their job."
One photojournalist said she spent 13 hours detained by Mexican authorities when she tried to cross the border. Eventually, she was denied entry and sent back to the U.S.
"It reminded me of the kinds of things that happened in the 1960s," said Hallin. "It seemed like a throwback to an earlier era when the FBI would conduct surveillance on activists of various kinds as well as journalists."
Hallin likened it to the J. Edgar Hoover counterintelligence program called COINTELPRO. It was used to gather information on civil rights activists, including Dr. Martin Luther King Jr.
Hallin also says this is reminiscent of President Richard Nixon's "Enemies List" of 1971.
It consisted of information on a number of journalists deemed adversarial to the administration. The list became public during Senate hearings and congressional scrutiny banned such scrutiny -- something certain to come up in arguments against this current program.
Eaton said you can expect a defense of the monitoring based on the broad right to engage in investigative activities related to law enforcement and sometimes that involves inconveniencing citizens.
"The fact that the president has declared a national emergency says that this seems to have risen to the level that this is a serious threat to the country," he said.
Still he added, there will be challenges to the motive: "Did this have the intent or effect of chilling the First Amendment right of the journalists?"