DHS used a customs statute to obtain journalists' and unions' records without judicial oversight

The US Department of Homeland Security has repeatedly used an obscure customs statute to compel telecom and technology companies to hand over records on journalists, unions and non-profit organisations without a warrant or any judicial review, according to The Guardian.

The provision in question, 19 USC 1509, exists so customs officials can inspect records to determine whether duties and taxes are correctly levied on imported items. It authorises broad document demands with only a sign-off from a DHS official rather than approval from a judge, and, as The Guardian reported on August 29, the agency has been applying it to domestic targets that have nothing to do with imports.

When a judge said no, DHS switched tools

The clearest example involves journalists Georgia Fort and Don Lemon, who have pleaded not guilty to criminal charges connected with a January protest at a Minneapolis church they were covering. In February, federal prosecutors twice sought search warrants for the YouTube account information of both journalists. A judge rejected the requests both times, finding the government had failed to establish probable cause, and said he wanted the journalists informed so they could contest the demands. About a month after the late-February ruling, the government withdrew the request.

It then found another route. Less than a month later, DHS served Google with an administrative summons under 19 USC 1509 seeking the same YouTube information, and instructed the company to keep the demand secret.

Phone records collected without notification

DHS separately obtained six months of Fort's T-Mobile phone records, covering more than 10,000 calls and text messages. Fort learned of the demand only in mid-July, when government lawyers turned the records over to her legal team. Her lawyers said in a court filing they were "stunned" that the government had been able to collect a log of a journalist's communications after a judge had already raised concerns about exactly that.

T-Mobile did not explain why it complied, saying it reviews government demands and responds "in accordance with the law" while declining to comment on specific cases. The Department of Justice and DHS both declined to comment on their use of the summonses.

A pattern beyond Minnesota

The Minnesota demands are part of a broader pattern. According to The Guardian, DHS also used 1509 summonses to seek YouTube account data for the outlet Democracy Now, the podcaster Megyn Kelly, the Milwaukee Journal Sentinel and independent journalist Brendan Gutenschwager. The cited videos were not limited to protest livestreams: the Democracy Now request referenced a news report and interview about the protest, and the request involving Kelly's channel cited an interview with the church's pastor.

The agency has also used the mechanism to pressure social media companies to unmask people who criticised ICE officers, and to obtain financial records for the Sunrise Movement, the Service Employees International Union and the Communications Workers of America, along with Venmo records for a non-profit called Voices for Racial Justice. None of those organisations has been charged with a crime, and DHS offered no explanation for why it needed the records. The New York Times reported in February that DHS had served hundreds of administrative subpoenas on social media companies.

Former officials call it an improper use

Chris Duncan, a former DHS lawyer, said the statute grants broad record-demand powers only for customs investigations and has "absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter". John Roth, who served as DHS inspector general from 2014 to 2017, called the summonses improper under any circumstances because no customs violation is being investigated.

Caitlin Vogus of the Freedom of the Press Foundation noted that with no judge involved there is no independent scrutiny of whether a demand is legitimate, and that call logs can help the government uncover a journalist's confidential sources. Nathan Freed Wessler of the American Civil Liberties Union said DHS has a long history of stretching this authority against people whose speech is protected by the First Amendment, and that because the summonses stay hidden unless a company or user challenges them, there is no way for courts, lawmakers or the public to gauge the scale of the practice.

Why it matters

The Fourth Amendment generally requires law enforcement to show a judge or grand jury that there is probable cause before seizing records. The Minnesota episode shows a workaround in action: after a judge twice refused warrants, the government obtained much of the same material through a customs provision that never reaches a courtroom, then kept the demand confidential. Because companies are not required to notify users, targets may never learn their data was handed over, leaving journalists' sources, union members and donors no opportunity to object. Until Congress or the courts narrow the use of administrative summonses, this gap between warrant requirements and a customs-era tool remains open.