The Trump administration has been using an obscure legal provision to obtain private information on journalists, nonprofits, and unions without judicial oversight, according to reporting by The Guardian.
The Department of Homeland Security invoked 19 USC 1509, an arcane customs statute, to serve administrative summonses on companies requesting records on journalists and media outlets covering a protest at a Minneapolis church in January. The provision was originally designed to address customs duties and tax collection on imports.
In one case, the DHS obtained six months of telephone records for Minneapolis journalist Georgia Fort from T-Mobile—records covering more than 10,000 calls and text messages—without notifying her until mid-July, after a federal judge had twice rejected the government’s earlier warrant requests for her YouTube account information. The judge had written that the government failed to establish probable cause and wanted Fort to be informed so she could challenge the request.
Fort’s lawyers wrote they were “stunned” to learn the government had unilaterally obtained her communication records after judicial pushback. The DHS also sought YouTube account information for journalists Don Lemon, Democracy Now, Megyn Kelly, the Milwaukee Journal-Sentinel, and independent journalist Brendan Gutenschwager.
Chris Duncan, a former Department of Homeland Security lawyer, said the statute was being misused. “These laws have absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter,” Duncan said.
The summonses were issued with secrecy instructions. Companies received the requests and were not required to notify users, though some did.
Beyond the journalist cases, the DHS used Section 1509 summonses to obtain financial records from unions including the Service Employees International Union and Communications Workers of America, and from left-leaning nonprofits including the Sunrise Movement and Voices for Racial Justice. None of these organizations was charged with crimes, and the DHS provided no explanation for why it needed the records.
Former DHS Inspector General John Roth called the conduct “outrageous.” “This is not a customs case; it is not a customs violation,” Roth said. Legal experts noted the approach circumvents the Fourth Amendment requirement that law enforcement show probable cause to a judge or grand jury before searching records.
The frequency and success rate of such summonses remain unclear. The New York Times reported in February that DHS had served hundreds of administrative subpoenas on social media companies. Nathan Freed Wessler, an ACLU privacy lawyer, said the opacity prevents oversight. “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.
Key facts
- The DHS used 19 USC 1509, a customs statute, to obtain records on journalists after a judge rejected warrant requests
- Journalist Georgia Fort’s six months of phone records from T-Mobile, covering 10,000+ calls and texts, were obtained without her notification until July
- The DHS sought YouTube account information for at least six journalists and media outlets including Don Lemon and Democracy Now
- The DHS used the same summons authority to obtain financial records from unions and nonprofits including SEIU and the Sunrise Movement
- Administrative summonses under Section 1509 require only DHS official approval, not judicial review, and come with secrecy instructions