Wyden, Jayapal ask GAO to investigate DHS use of summonses against journalists

Federal judges twice rejected search warrants before HSI obtained same records

Two congressional Democrats, Sen. Ron Wyden of Oregon and Rep. Pramila Jayapal of Washington, asked the Government Accountability Office on Tuesday to investigate the Department of Homeland Security’s use of administrative summonses to secretly collect records on journalists, non-profits and unions without judicial oversight, according to a copy of the request seen by The Guardian. A GAO spokesperson confirmed the office received the request and was examining it.

The lawmakers’ request follows a Guardian report that Homeland Security Investigations, the investigative arm of DHS, used the summonses to obtain six months’ worth of telephone records for Georgia Fort, a Minneapolis journalist, and to seek YouTube account information for Fort and journalist Don Lemon after a judge twice rejected search warrant applications for the same records.

In their letter, Wyden and Jayapal asked the GAO to audit two specific DHS practices. First, they asked for “an audit of HSI’s use of non-disclosure language in immigration subpoenas and customs summonses.” Second, they asked the GAO to investigate “the circumstances under which HSI has used customs summonses unrelated to import violations or customs duties” — that is, outside the customs context for which the authority was designed.

The Georgia Fort phone records case anchors the lawmakers’ concern. According to The Guardian’s reporting, HSI used an administrative summons typically associated with customs matters to obtain six months’ worth of Fort’s telephone records. The lawmakers’ letter does not dispute HSI’s authority to issue customs summonses; it disputes the use of that authority for purposes unrelated to customs.

The Google summons for Fort and Lemon’s YouTube accounts illustrates the warrant-bypass dimension of the lawmakers’ complaint. HSI issued the administrative summons after a judge had twice rejected a search warrant application for the same information, telling the government that Fort and Lemon needed to have a chance to contest the request. The lawmakers’ letter does not name the judge or the court, and The Guardian’s report does not identify the jurisdiction.

HSI sought the records after federal prosecutors charged Fort and Lemon with civil rights crimes in connection with a protest at a Saint Paul, Minnesota church in January that they were covering. Both have pleaded not guilty.

The lawmakers’ letter also pointed to a broader pattern of administrative-summons use that extends beyond the Fort and Lemon cases. DHS has used administrative summonses to obtain financial information on labor unions and Venmo transactions for a non-profit group, the letter said. DHS has also issued “a slew” of administrative subpoenas to Meta, X and Reddit in an effort to identify anonymous DHS critics, the lawmakers wrote.

A recurring concern in the letter is the non-disclosure language DHS has included in its summonses. Each summons, the lawmakers wrote, asks that the recipient not notify the user of the summons’s existence on the ground that notification would “impede the investigation and thereby interfere with the enforcement of federal law.” Privacy experts told the lawmakers that the language is not legally binding and that companies receiving the summonses can ignore it.

“Crucially, the recipients of these subpoenas — often third-party companies and service providers — maintain a First Amendment right to notify their customers of the demand, allowing the actual targets of the subpoenas the opportunity to assert their own legal rights or challenge the demand in court,” Wyden and Jayapal wrote.

The lawmakers extended the same concern to the Department of Justice and the U.S. Drug Enforcement Administration, both of which have used similar language in subpoenas that pressure companies into keeping a request private when, in many cases, the law does not prohibit notifying the customer about the inquiry.

Wyden and Jayapal wrote that while large technology firms with sophisticated counsel sometimes ignore these “extra-legal requests,” many other businesses in heavily regulated sectors — including telecommunications, pharmaceuticals, automotive manufacturing and banking — “often comply out of fear of regulatory retaliation.” The lawmakers noted that “companies like AT&T and CVS have explicitly cited these extra-legal government demands to Congress to justify their failure to notify customers when their private records are turned over to the government.”

The lawmakers also asked the GAO to identify any changes DHS made to its policies around administrative summonses after a 2017 DHS inspector general report found the summonses were being used improperly. The 2017 report and any subsequent policy revisions were not detailed in the lawmakers’ letter.

In a parallel request, Wyden and Jayapal asked the Judicial Conference — the group that oversees policies for the federal courts — to amend the template for a grand jury or trial subpoena to make clear that recipients are allowed to disclose the existence of the request unless a court order specifically prohibits it.

“These steps will help ensure that agencies do not abuse their subpoena authorities at the expense of privacy and free speech rights,” Wyden and Jayapal wrote.