Tim Stegmaier is an accomplished professional artistic and journalistic photographer residing in Cincinnati. His work encompasses a wide variety of topics ranging from world cultures, to animal conservation, to yoga, and has taken him to Vietnam, Cambodia, Guinea, Senegal, and most recently, on a six-month trip throughout China and the Philippines. In Manila, he took a sequence of candid images depicting local children experiencing abject poverty and desperate conditions. The photographed children were swimming in filthy water and industrial waste, surrounded by heaps of plastic garbage and fecal matter. Many of the children were unclothed, which in itself is an unremarkable circumstance in similar contexts in the region. The social, educational, and artistic value of the photography was obvious.
On June 28, 2019, Mr. Stegmaier was detained by CBP at Detroit Metropolitan Airport, and consented to a search of his laptop computer, smartphone, and camera. While the search was conducted, he was held for over four hours—causing him to miss his connecting flight—with no water, no explanation, and no ability to contact anyone. He was interrogated at some length about his travels and his photography; at one point, an agent taunted him about the perceived quality of his simple point-and-shoot camera. Eventually he was released and his passport was returned, but his electronic devices were not.
As its rationale for seizing Mr. Stegmaier’s equipment, CBP alleged that it had been used to commit an offense “involving any visual depiction of sexual exploitation of children,” citing 18 U.S.C. §§ 2251 et seq. A formal notice was not issued until August 6, 2019, by which time Mr. Stegmaier had already written a detailed letter to CBP requesting his property’s return. Subsequently, he contacted the National Coalition Against Censorship, who in turn referred the matter to the ACLU of Ohio on August 8.
The First Amendment protects visual expression, including—per Supreme Court and Sixth Circuit precedent—innocuous photographs of naked children. Images may exceed that protection and violate the cited statute only where they depict “sexually explicit conduct,” which in turn is a fact-specific inquiry focusing on the content and context of the pictures. Neither the content of Mr. Stegmaier’s images, nor the context of a professional photographer seeking to call attention to poverty, are sufficient to satisfy that inquiry. Accordingly, the seizure under § 2251 was improper.
On September 3, 2019, we submitted a petition for remission of forfeiture to CBP, explaining in detail why Mr. Stegmaier’s property should be returned to him. On September 20, 2019, CBP responded that upon further review and consideration, it has concluded that the images in question do not fit the statute’s description, and has offered multiple options for the potential return of Mr. Stegmaier’s equipment. However, CBP is conditioning the return of Mr. Stegmaier’s equipment upon his execution of a hold harmless agreement. We successfully negotiated to limit the terms of that agreement, so as to release only those claims that Mr. Stegmaier knew of at the time he signed the agreement. Mr. Stegmaier’s equipment has been returned to him.