A federal judge twice rejected the government's request for a search warrant to obtain the YouTube account records of two journalists covering an immigration protest, ruling in February that prosecutors had failed to establish probable cause and that the journalists deserved a chance to contest the request. [1] Less than a month later, the Department of Homeland Security got the same information anyway — not through a warrant, but through an administrative summons issued under a customs-import statute that requires no judge's sign-off at all. [1]

The Guardian reported Saturday that DHS's Homeland Security Investigations division used the maneuver, an administrative summons under 19 U.S.C. § 1509, to obtain six months of phone records — more than 10,000 calls and text messages — for Minneapolis journalist Georgia Fort, and to demand YouTube account data on Fort and journalist Don Lemon after the warrant route had already failed in court. [1] Fort was not told the request existed until mid-July, when government lawyers turned the records over to her own lawyers during litigation; her legal team wrote they were "stunned" that the government had unilaterally obtained a communications log after a judge had specifically warned prosecutors to notify her. [1]

The statute DHS invoked was written for a narrower purpose than the one it is now serving. Section 1509 gives Homeland Security broad power to inspect records to verify that import duties and taxes are correctly assessed — a customs-enforcement tool, not a criminal-investigation shortcut. "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 DHS lawyer. [1] John Roth, who served as the department's inspector general from 2014 to 2017, was blunter still: "It's outrageous conduct on so many levels. It's hard to know where to begin. This is an improper use of the subpoena under any circumstances." [1] Fort and Lemon were charged with civil rights crimes over a January protest at a Saint Paul church where a local ICE official serves as pastor — charges both have pleaded not guilty to, and which the Justice Department has argued give DHS jurisdiction to pursue the records under the same customs authority, on the theory that the protest constituted a potential assault on a federal officer. [1]

What distinguishes the mechanism from a warrant is not just the absence of a judge — it is what happens after the summons is served. Google, which did not comply with DHS's demand for any of the accounts, told the department it had failed to establish any relationship to a customs investigation. [1] But T-Mobile did comply with the summons for Fort's phone records, declining to say why. [1] Each 1509 summons also instructs its recipient to keep the request secret — language privacy lawyers say has no actual legal force. "There is no judge in the loop," said Caitlin Vogus of the Freedom of the Press Foundation. "You don't have that independent authority to scrutinize the demand and to say whether or not it's legitimate." [1] Companies that do notify users, and give them the chance to fight the summons in court themselves, are effectively shifting a legal burden that can cost tens of thousands of dollars onto individuals and small nonprofits — a burden Fort could only contest once the records had already changed hands.

The Minneapolis case is not an isolated use of the power. DHS separately obtained financial records for the Sunrise Movement, the Service Employees International Union and the Communications Workers of America, plus Venmo transaction data for a nonprofit called Voices for Racial Justice, in connection with a case charging 15 activists with criminal conspiracy — none of the organizations themselves face charges. [1] The department has also issued administrative subpoenas to Meta, X and Reddit seeking to unmask anonymous critics of ICE, part of what the New York Times reported in February was a pattern of hundreds of such demands sent to social media companies. [1] Nathan Freed Wessler, an ACLU attorney focused on privacy, described a recurring institutional habit: "There's a long history of DHS abusing this summons authority... to try to go after people whose speech DHS is somehow irked by — but whose speech is protected by the First Amendment." [1]

That history includes a precedent DHS has been careful not to repeat in open court. In 2017, Twitter sued the department over a 1509 summons seeking to unmask an anonymous account critical of DHS; the department withdrew the summons rather than let a judge rule. [1] The pattern recurred as recently as this year, when a user targeted over an Instagram account monitoring ICE activity in Philadelphia's suburbs challenged a summons in court — DHS withdrew it the day after both sides presented arguments to a judge. "They don't want a judge to take away this scary tool because they are getting stuff out of it," said Lauren Regan of the Civil Liberties Defense Center. "Once a court ruling says 'thou shalt not use this statute,' it does not apply." [1] A 2017 DHS inspector general report had already found the department's use of these summonses "inconsistent — and, in some cases, improper," and recommended reforms the department agreed to at the time. [1] Nearly a decade later, the pattern the inspector general flagged has not been broken. It has simply found a new set of targets.

-- ANNA WEBER, Berlin