The Department of Homeland Security has deployed an administrative summons process to obtain records on journalists, media outlets and advocacy groups without court approval, according to reporting on practices the agency has undertaken in recent months.
In one documented case, DHS obtained six months of telephone records for Minneapolis journalist Georgia Fort after a federal judge twice rejected the government’s request for a search warrant. The judge cited insufficient evidence of criminal wrongdoing and expressed concern that Fort should be notified and given opportunity to challenge the request. When prosecutors withdrew their warrant application in late February, DHS issued an administrative summons to Google under 19 USC 1509, a provision designed to address customs duties and import tax issues. The summons instructed Google to keep the request confidential. DHS also obtained Fort’s phone records from T-Mobile, which Fort’s legal representatives said they were “stunned” to discover in mid-July.
The summons authority was also used to seek information on YouTube accounts belonging to journalist Don Lemon, the outlet Democracy Now, conservative podcaster Megyn Kelly, the Milwaukee Journal-Sentinel and independent journalist Brendan Gutenschwager. The requests covered video content related to coverage of a Minneapolis church protest in January. Legal experts and former government officials have criticized the practice. Chris Duncan, a former DHS lawyer, stated the customs statute has “absolutely nothing to do with a domestic situation at a church.” John Roth, who served as DHS inspector general from 2014 to 2017, characterized the use as improper and noted it fell outside customs investigations. Caitlin Vogus of the Freedom of the Press Foundation raised concerns about journalist source protection and the absence of judicial review.
The Department of Justice and Department of Homeland Security declined to comment on the practice. T-Mobile similarly declined to discuss its decision to provide records, stating only that it reviews government demands in accordance with law. Legal observers have characterized the administrative summons approach as circumventing Fourth Amendment protections that typically require probable cause and judicial approval for records searches.
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