DHS uses obscure customs summons to obtain records on journalists, nonprofits

DHS withdraws summonses before courts can rule on legality

The Department of Homeland Security has been deploying an obscure legal authority — 19 USC 1509, a customs-enforcement statute — to demand records from telecommunications and technology companies about journalists, non-profits and labor unions. The statute gives DHS the authority to inspect records to determine whether duties and taxes are being correctly levied on imported items. Unlike a search warrant, a 1509 summons requires only the sign-off of a DHS official, not judicial approval, and recipients are instructed to keep the summons secret.

In Minnesota, the agency used that authority after a judge had twice rejected search-warrant requests for the same information. In February, federal prosecutors twice sought search warrants for account information tied to the YouTube channels of Fort and Lemon, both of whom face criminal charges connected to a protest at a Minneapolis church in January that they were covering. The judge rejected both warrant requests, writing that the government had failed to establish probable cause of a crime and that he wanted Lemon and Fort to be informed of the request so they could have a chance to challenge it. About a month after the late-February ruling, the government said it was withdrawing the request.

Less than a month later, DHS served Google with a different request for the YouTube information, this time using a 1509 summons — which did not require judicial approval.

Separately, DHS obtained six months of Fort’s phone records from T-Mobile, covering more than 10,000 calls and text messages. Fort was not notified until mid-July, when government lawyers produced them to her attorneys. Her lawyers wrote in a recent filing that they were “stunned” the government had been able to obtain a log of her communications after a judge had already warned the government about pursuing records from a journalist.

“There is no judge in the loop. You don’t have that independent authority to scrutinize the demand and to say whether or not it’s legitimate,” said Caitlin Vogus, a senior adviser at the Freedom of the Press Foundation. “That’s very concerning because the information demanded can help the government uncover a journalist’s confidential sources.”

Google did not comply with the 1509 summons for any of the accounts, telling DHS the agency had not offered evidence of how the request was related to a customs investigation. A company spokesperson said Google reviews each request to ensure it is legal and pushes back when it is too broad or does not follow the correct process.

DHS also sought YouTube account information for the independent news outlet Democracy Now, conservative podcaster Megyn Kelly, the Milwaukee Journal-Sentinel and independent journalist Brendan Gutenschwager. Some of the cited videos were livestreams of the protest at the church; others were not. The video tied to the Democracy Now request involved a news report on the protest and an interview with Nekima Levy Armstrong, who led the demonstration. The video tied to Kelly’s show included an interview with Jonathan Parnell, the pastor at the church. The records sought include IP addresses and information about when a user logged in.

Former DHS lawyers and privacy attorneys characterized the use of 1509 summonses for these records as outside the statute’s scope.

“These laws have absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter,” said Chris Duncan, a former lawyer at the Department of Homeland Security.

“It’s outrageous conduct on so many levels. It’s hard to know where to begin,” said John Roth, who served as the DHS inspector general from 2014 to 2017. “This is an improper use of the subpoena under any circumstances. This is not a customs case; it is not a customs violation. They are not investigating a customs violation.”

In a separate case in which 15 activists face criminal conspiracy charges, DHS successfully obtained the financial records of the Sunrise Movement, the Service Employees International Union and the Communications Workers of America, as well as Venmo records for the non-profit Voices for Racial Justice. None of the organizations is charged with crimes, and DHS did not offer an explanation for why it needed the records. PayPal, Venmo’s parent company, declined to comment.

“There’s a long history of DHS abusing this summons authority in particular, and using it to seek both records that are clearly outside of its scope in general, and more particularly to try to go after people whose speech DHS is somehow irked by — but whose speech is protected by the first amendment,” said Nathan Freed Wessler, a lawyer at the American Civil Liberties Union who specializes in privacy issues.

It is difficult to determine how often DHS is using the 1509 summons. Companies are not required to notify users that they have been served with a 1509 summons for information, and the demands often remain hidden from public view unless the company or the user challenges them. The New York Times reported in February that DHS had served hundreds of administrative subpoenas on social media companies for information on users. “Without knowing how many of these subpoenas there are and what they’re being used for, there’s no way for courts or lawmakers or the public to put checks on executive branch abuses,” Wessler said.

In several cases, DHS has withdrawn a 1509 summons after it was challenged in court and before a judge could rule on its legality — a pattern that legal advocates have described as a likely deliberate strategy to avoid judicial review. Last year, DHS served a 1509 summons on Meta to unmask the user behind an Instagram and Facebook account that monitored ICE agent activities in the Philadelphia suburbs. The user challenged the summons in court; both sides presented arguments on January 15, and DHS withdrew the summons the next day.

“They don’t want a judge to take away this scary tool because they are getting stuff out of it,” said Lauren Regan, executive director of the Civil Liberties Defense Center, which represented a Reddit user who challenged a 1509 summons. “Once a court ruling says ‘thou shalt not use this statute,’ it does not apply.”

Companies can ignore a 1509 summons if they believe it is unlawful, forcing the government to seek a court order to enforce it — a process that imposes high legal costs on individual users, according to privacy advocates.

“If a user actually hired a lawyer, it would cost tens of thousands of dollars to fight one of these,” said F Mario Trujillo, a lawyer at the Electronic Frontier Foundation. “They are not shouldering that burden; they’re pushing that cost onto users and onto non-profit groups when they could easily get their high-powered lawyers who are being paid $500 to $1,000 an hour to fight these.”

In 2017, Twitter filed a lawsuit challenging a DHS 1509 summons seeking to unmask the account @alt_uscis, which was critical of the agency. The department ultimately withdrew that summons. The same year, the DHS inspector general issued a report finding “inconsistent — and, in some cases, improper” use of 1509 summonses after the @alt_uscis case. The review found that officials in Customs and Border Protection’s office of professional responsibility were regularly misusing the subpoena and recommended a series of reforms; the office agreed to the reforms.

In the Minneapolis church case, the Justice Department has argued it had the power to use the customs-related summons even though the charges against the defendants have nothing to do with customs. Justice Department lawyers wrote in a filing earlier this year that the protesters entered the church because a local ICE official was a pastor there, and could have potentially assaulted him or interfered with his duties — even though the man does not appear to have been there and no DHS officials were at the church or involved in the protest.

In a December court filing last year, a government lawyer argued the statute does not limit DHS’s authority to customs matters but instead “authorize[s] DHS to investigate potential crimes to insure ‘compliance with the laws of the United States administered by the United States Customs Service.’” Duncan, the former DHS lawyer, called that reading an overbroad misreading of the statute. “Congress obviously intended to authorize only records, demands and interviews in furtherance of investigations into customs violations,” he said, “not wild goose chases into possible violations of any federal law without any judicial oversight.”

T-Mobile, asked about Fort’s records, said in a statement: “We take our responsibility to protect customers’ privacy and personal information very seriously. Our team carefully reviews government demands for customer information and responds in accordance with the law.” The Department of Justice and the Department of Homeland Security both declined to comment on the use of the summons.