POGO Requests Investigation of DHS Subpoenas on Journalists, Nonprofits

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Dear Inspector General Cuffari:

On behalf of the Project On Government Oversight (POGO), I am writing to strongly urge your office to immediately open a comprehensive investigation into reports of alarming misuse of 19 U.S.C. § 1509 administrative summonses by the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE).

A recent report by The Guardian revealed a brazen pattern of DHS exploiting its administrative subpoena authority to secretly obtain the private communication and financial records of journalists, labor unions, and nonprofits.¹ By utilizing a statute designed specifically to assess customs duties and taxes on imported goods, DHS officials are orchestrating an end-run around the Fourth Amendment — circumventing independent judicial oversight to snoop on First Amendment-protected activities.

The abuses chronicled in the recent reporting are staggering in both scope and intent. According to the investigation, DHS has weaponized § 1509 summonses to target journalists, investigate nonprofits and unions, and unmask critics. For example,

• DHS reportedly obtained six months of private telephone records for Minneapolis journalist Georgia Fort from T-Mobile, encompassing over 10,000 calls and text messages. It sought YouTube account information for Fort, Don Lemon, Democracy Now, Megyn Kelly, and others. Alarmingly, DHS deployed administrative summons after a federal judge had already rejected search warrants for this information for lack of probable cause.
• DHS also reportedly used this authority to demand the financial or Venmo records of groups like Sunrise Movement, Service Employees International Union (SEIU), Communications Workers of America, and Voices for Racial Justice, despite none of these organizations being charged with any crimes.
• The agency has also reportedly used these summonses to aggressively pressure social media companies to uncover the identities of anonymous users who monitor or criticize ICE activities.

Perhaps most concerning is the agency’s strategic evasion of judicial review. Because companies are not required to notify users when a § 1509 summons is issued, the targets rarely have the opportunity to challenge them in court. On several occasions when a target or tech company did challenge the summons — such as a recent case involving an Instagram user monitoring ICE in Philadelphia — DHS has withdrawn the summons before a judge could rule on its legality, preventing courts from halting the abuse of this statute.²

This is not a new problem, but it is clearly an escalating one. In 2017, your office issued a report regarding the improper use of § 1509 summonses following an attempt by Customs and Border Protection to unmask the operator of the “@alt_uscis” Twitter account. At the time, the OIG found inconsistent and improper uses of this authority and recommended reforms.³ It is now abundantly clear that problems remain, and DHS components have expanded their abuse of this tool to conduct unchecked domestic surveillance on the press and civil society.

The Project On Government Oversight urges your office to immediately initiate a thorough audit and investigation into this matter. Specifically, we request that you determine the total number of 19 U.S.C. § 1509 summonses issued by all DHS components over the last 18 months that were unrelated to customs, import duties, or taxes, and the circumstances behind those subpoenas, including whether those subpoenas were designed to circumvent current controls, including judicial or Department of Justice review. We also request that you issue recommendations to prevent abuse of § 1509 subpoena authority.

Unchecked subpoena power poses a fundamental threat to a free press and the civil liberties of all Americans. Without urgent intervention from your office, DHS will continue to use customs laws as a back door for warrantless domestic surveillance.

Thank you for your prompt attention to this grave matter. We look forward to your response.