DHS uses an obscure customs law to snoop on journalists, non-profits and unions

The Guardian reported on 29 August that the US Department of Homeland Security is using an obscure legal manoeuvre to obtain private information on journalists, non-profits and unions without judicial oversight.

No judge in the loop

The tool is an administrative summons citing 19 USC 1509, a customs provision that allows DHS to demand records in order to establish whether duties and taxes are correctly levied on imports. It requires only the sign-off of a DHS official — not a judge — and recipients are instructed to keep it secret. Chris Duncan, a former DHS lawyer, said the law "has absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter". John Roth, the department's inspector general from 2014 to 2017, called it "an improper use of the subpoena under any circumstances".

The Minneapolis case

In February, federal prosecutors twice sought search warrants for account information on the YouTube channels of Minneapolis journalist Georgia Fort and Don Lemon, who have pleaded not guilty to charges tied to a January protest at a Minneapolis church they were covering. A judge rejected both requests, finding no probable cause and asking that the journalists be notified so they could challenge the demand; the government withdrew it in late February. Less than a month later, DHS served Google with a 1509 summons for the same data. Google did not comply, saying the department had shown no link to a customs investigation. In Fort's case the government obtained six months of her phone records from T-Mobile — more than 10,000 calls and text messages — and she learned of it only in mid-July. Similar summonses covered the YouTube accounts of Democracy Now, podcaster Megyn Kelly and other outlets.

Unions, non-profits and the record

DHS also obtained financial records from the Sunrise Movement, the Service Employees International Union and the Communications Workers of America, plus Venmo records for an organisation called Voices for Racial Justice. None is charged with a crime and the department offered no explanation. Caitlin Vogus of the Freedom of the Press Foundation said "there is no judge in the loop" and warned that the data sought can help uncover a journalist's confidential sources; the ACLU's Nathan Freed Wessler said there is a long history of DHS abusing this authority. In 2017 Twitter sued over a 1509 summons aimed at unmasking @alt_uscis, an account critical of DHS, and the department withdrew it; a DHS inspector general report that year found "inconsistent — and, in some cases, improper" use of such summonses.