How DHS is using a controversial legal tool to target critics of immigration enforcement
The Department of Homeland Security (DHS) is using a legal tool known as an administrative subpoena to obtain private information on Americans from tech companies. But what exactly are administrative subpoenas? And why are they controversial?
The topic is receiving attention after The Washington Post reported last week that an administrative subpoena was used in October against a 67-year-old man — and against others critical of the Trump administration’s aggressive enforcement of immigration laws.
The man, a retiree identified as “Jon” who lives in a suburb of Philadelphia, received an email from Google informing him that DHS had demanded access to his data. The alert came just five hours after Jon sent an email to federal prosecutor Joseph Dernbach imploring him to show mercy toward an Afghan refugee facing deportation.
Jon had sent the email after reading a news article about the refugee, referred to as “H,” and his fears that he’d be killed by the Taliban if forcibly sent back to Afghanistan.
“Mr. Dernbach, don’t play Russian roulette with H’s life,” Jon wrote. “Err on the side of caution. There’s a reason the US government along with many other governments don’t recognise the Taliban. Apply principles of common sense and decency.”
A controversial legal tool
Hours after Jon hit send, DHS took steps to document his digital footprint, including personal data he had shared with Google.
The department sent Google a subpoena demanding it turn over information such as Jon’s IP address and home address; a list of all Google services he had used; the date, time and duration of his online sessions; and other identifiable information, including his usernames, Social Security number, credit card data and driver’s license number.
Jon assumed the alert from Google was related to a judicial subpoena — a request for data that has been approved by a judge. But administrative subpoenas require no such approval. While they cannot be used to access information like the contents of actual emails or location data, they can help the government obtain detailed information without an individual’s consent.
Although administrative subpoenas have been used for more than 50 years, their use greatly expanded in the wake of the Sept. 11, 2001, terror attacks.
Proponents of the tool argue that it allows the federal government to obtain pertinent information related to serious criminal investigations in a swift manner. Critics say that administrative subpoenas lack oversight and violate the Fourth Amendment’s prohibition of unreasonable searches and seizures.
The tool, critics believe, is now being increasingly used by DHS for matters related to immigration and the mass deportation of people lacking legal status to remain in the U.S.
In Jon’s case, the agency went beyond issuing a subpoena. Two weeks after he sent the email, DHS agents showed up at his front door to question him about the intention behind his remarks.
‘Unmasking critics’
The Post reported that DHS declined to explain why it issued a subpoena for Jon’s data, but DHS Assistant Secretary Tricia McLaughlin said the subpoena “was part of a criminal investigation.
In a statement to Straight Arrow News, McLaughlin said that DHS’s Homeland Security Investigations division has “broad administrative subpoena authority.”
Google says it pushed back on the DHS effort to obtain Jon’s data, and the agency ultimately dropped its request.
But Jon isn’t the only one to be targeted by an administrative subpoena. DHS has used the tool broadly in an effort to gather information on opponents to the Trump administration’s immigration policies.
Earlier this month, according to Bloomberg, DHS used the tool to demand that Meta hand over data associated with an anonymously-run Instagram account. The account, @montcowatch, shares resources regarding immigrant rights in Montgomery County, Pennsylvania. DHS cited a tip it received that alleged the account was responsible for ICE agents being stalked.
The account owner was able to receive legal representation from the American Civil Liberties Union, which argued that @montcowatch had not engaged in any wrongdoing. DHS withdrew its subpoena shortly after.
An ACLU lawyer told The Post that the issuance of administrative warrants is part of a troubling trend.
“There’s no oversight ahead of time, and there’s no ramifications for having abused it after the fact,” the lawyer, Jennifer Granick, said. “As we are increasingly in a world where unmasking critics is important to the administration, this type of legal process is ripe for that kind of abuse.”
Administrative subpoenas aren’t just aimed at tech companies.
In March, DHS issued two data requests to Columbia University as part of an effort to deport a student who participated in pro-Palestinian protests. And last month, DHS used an administrative subpoena to demand information on roughly 7,000 healthcare workers in Minnesota after they protested the presence of ICE at a local hospital.
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Ella Rae Greene, Editor In Chief
