US Immigration and Customs officials are using an obscurely legal tool to demand data from elementary schools, news organizations and abortion clinics in ways that some experts say may be illegal.
While these administrative subpoenas, known as 1509 custom subpoenas, are only intended to be used in criminal investigations into illegal imports or unpaid customs duties, WIRED found that the agency has been using them to look up data that seemingly has little or nothing to do with customs violations, according to legal experts and various recipients of the 1509 writs.
A WIRED analysis of an Immigration and Customs Enforcement (ICE) summons tracking database obtained through a Freedom of Information Act request found that between early 2016 and mid-August 2022, agents issued modified subpoenas more than 170,000 times. have issued. 1509s include telecommunications companies, major technology companies, remittance services, airlines, and even utilities. But it is the fringe issues that are of most concern to legal experts,
The outlier cases included modified subpoenas seeking records from a texas youth football league; surveillance video of a major Illinois abortion provider; student files from a primary school in Georgia; medical records from the student health department of a major state university; data from three electoral colleges or electoral divisions; and data from a Lutheran organization that provides refugee humanitarian and housing support.
In at least two cases, ICE agents used the modified subpoena to pressure news organizations to release information about their sources.
All this happens without judicial supervision.
“This is really dangerous,” said Matthew Guariglia, a policy analyst at the Electronic Frontier Foundation, a digital rights nonprofit. He adds that the frequent and apparently widespread use of 1509 subpoenas “creates a situation where this agency can go completely rogue” by using this tool in investigations beyond the scope of the law.
Two current agents from ICE’s Homeland Security Investigations (HSI) division cautioned against drawing conclusions about possible abuse of the subpoena without additional context on any investigation referenced in the database. The agents, who have asked not to be named because they are not authorized to speak to the media, claim that because the agency is responsible for enforcing hundreds of customs laws – including the distribution of child sexual abuse material (CSAM ) – each subpoena may have been issued for an investigation admissible by law.
However, a former high-level Department of Homeland Security (DHS) official, who spoke on condition of anonymity because their current employer prohibits them from speaking to the press, expressed serious concerns about many of the subpoenas. “It seems reasonable that ICE should be able to see documents from a company like Amazon for customs investigations,” they say. “But what possible use or authority would ICE have for subpoenaing abortion clinic records?”
“It’s like all power,” the official adds. “If it’s not controlled, it’s being abused.”
Cast a wide net
The 1509 Customs Summons is an administrative summons expressly and solely intended for use in investigations of illegal imports or unpaid customs duties under a law known as Title 19 US Code 1509. The goal is to provide agencies like ICE with a way to obtain corporate data from companies without going to court for a warrant.
The subpoenas tracking database WIRED has obtained provides the most detailed view of how ICE has used the Customs Call to date. The data shows that ICE issued 172,679 subpoenas between January 4, 2016 and August 22, 2022, an average of more than 70 per day. Half of this was sent to telecommunications companies such as AT&T, T-Mobile and Comcast. Large technology companies such as Google, Meta and Microsoft collectively received nearly 15,000 subpoenas. Of the thousands of subpoenas sent to social media companies, Meta and Snapchat make up the vast majority.