Database Shows ICE Is Bypassing Courts And Sending Subpoenas To Schools, Charitable Organizations, And Abortion Clinics
There's something about some government agencies that make them revolt against the notion of checks and balances. Some federal agencies have extra privileges that make it much, much easier. A large number of agencies can issue their own subpoenas, demanding data, recordings, and other information from their targets - self-issued documents that bypass the court system entirely.
The FBI does this literally all the time. If it feels demands for info might not be completely constitutional, it will just issue its own National Security Letter (NSL). This letter is always accompanied by a gag order. And these gag orders are often indefinite, preventing recipients from discussing the existence of the letter, much less its content. The FBI writes the letter and sends it off. No court needed.
ICE does the same thing. Apparently, its vast surveillance apparatus - one fueled and fired by Palantir's tech - isn't enough. ICE wants all the data it can get, a nasty habit that has occasionally gotten it in trouble.
Wired obtained a copy of ICE's subpoena database via a FOIA request. This contains data on ICE's Section 1509 subpoenas, which are supposed to be limited to investigations relating to illegal imports or unpaid customs fees. An analysis of the database found ICE had issued 170,000 of these 1509 subpoenas from 2016 to the middle of 2022. Most of those sought the normal" kind of data. And by normal," I mean normal" as defined by the Third Party Doctrine, which says nearly anything shared with third parties can be forcibly shared" with the government without the use of warrant.
Most of the 170,000 subpoenas do what's expected: seek data and info from phone companies, money transfer services, and utility companies. (Even that last one is controversial. ICE recently lost warrantless access to this data.)
Then there are the exceptions to the ~170,000 rule - the sort of thing that's seriously alarming given the targets and given the supposed investigative purpose of these 1509 subpoenas. Customs Enforcement is supposed to be the purpose. Who knows what the fuck is going on here.
The outlier cases include custom summonses that sought records from a youth soccer league in Texas; surveillance video from a major abortion provider in Illinois; student records from an elementary school in Georgia; health records from a major state university's student health services; data from three boards of elections or election departments; and data from a Lutheran organization that provides refugees with humanitarian and housing support.
In at least two instances, agents at ICE used the custom summons to pressure news organizations to reveal information about their sources.
It's easy to see why ICE went the 1509 subpoena route for these requests. It's hard to believe a judge would approve a warrant seeking information about journalists' sources or surveillance footage from an abortion clinic, especially considering the alleged crime in the case of the latter demand.
A major abortion provider in Illinois said that ICE had demanded surveillance video of a man running through their parking lot for a financial investigation.
The subpoenas handed to journalists failed to generate any results fortunately. BuzzFeed was one of the targets, but ICE also sent subpoenas to other news agencies that had covered a leaked ICE memo, apparently in hopes of identifying the source of the leak.
Former DHS deputy chief counsel Robert Dunikoski told Wired the numerous requests sent to schools were probably just ICE trying to combat CSAM. Schools are where the children are, so that might explain why ICE would seek info from schools, but not why it would use self-issued subpoenas under this particular legal authority, which doesn't say ICE can use these subpoenas for this reason:
(a) Authority In any investigation or inquiry conducted for the purpose of ascertaining the correctness of any entry, for determining the liability of any person for duty, fees and taxes due or duties, fees and taxes which may be due the United States, for determining liability for fines and penalties, or for insuring compliance with the laws of the United States administered by the United States Customs Service...
This doesn't say ICE can use these to investigate any crime. It limits it to a short list of customs crimes, which CSAM isn't. Without access to the underlying subpoenas, it's extremely difficult to find these secondhand assertions by a former DHS lawyer credible, especially when he's attempting to defend ICE, which has engaged in plenty of surveillance abuses. I'm with the EFF on this one.
The EFF's [Matthew] Guariglia says it seems a little far-fetched" to suggest that all these summonses could be issued in CSAM investigations, given ICE's record of abusing these summonses. I'd have to see proof they were actually investigating specific harms to children," he says. I don't know why anyone would take ICE at its word given their track record."
It will probably take another kind of investigation to get to the bottom of this. Hopefully, someone's already in the process of referring this to the DHS Inspector General. At some point, we may have something that approaches the truth. And by that point, ICE will already be another couple of scandals down the road.