The government shouldn’t be able to secretly demand a journalist’s phone records without a judge or the journalist ever seeing the request. But that’s exactly what happened to Georgia Fort and Don Lemon.Fort and Lemon, who are being criminally prosecuted in a legally dubious case for their coverage of a protest against immigration authorities at a Minnesota church, recently revealed that the government sought information from Google and their phone companies about their accounts, and asked the companies to keep the demands secret.Unlike other recent cases relating to legal demands involving the press, the government didn’t use a search warrant or grand jury subpoena to pry into Fort’s and Lemon’s records. In fact, a federal judge had twice rejected a search warrant demanding the same information from Google that the government later sought using a different method.Instead, Homeland Security Investigations, a component of Immigration and Customs Enforcement, went after the reporters’ YouTube account information and phone records using an administrative subpoena known as a 1509 summons.This disturbing tactic raises broader questions for journalists and the public: How can the government use an administrative subpoena to obtain journalists’ information, and what can journalists and tech companies do about it? It also puts renewed pressure on Congress to rein in ICE’s abuse of administrative subpoenas by passing legislation like the Subpoena Abuse Prevention Act.What is a 1509 summons?A federal customs law, 19 U.S.C. § 1509, gives the Department of Homeland Security authority to issue administrative subpoenas, or summonses, for records related to investigations of customs matters. Although 1509 summonses are limited to customs investigations, DHS has routinely abused them to seek information far outside the law’s scope, including information about those who criticize or track ICE.Unlike a search warrant, administrative subpoenas don’t require probable cause, and they are not reviewed or approved by a judge. Instead, they are issued by a DHS employee.These summonses are also not self-enforcing; if the recipient refuses to comply, the government generally must seek enforcement in court. Once in court, the recipient can raise objections to the summons.When DHS sends a 1509 summons, it typically asks the recipients to keep the demands secret and warns that disclosure could interfere with enforcement of federal law. But this request is not legally binding, and nothing in the law allows DHS to prohibit the recipient from revealing the summons. That means the recipient is free to reveal it to the target of the demand or the public.Why are 1509 summonses a problem for journalists and press freedom?Administrative subpoenas targeting accounts used by journalists, like the 1509 summonses used against Lemon and Fort, can reveal highly sensitive information about journalists’ work. Phone call records can show who a reporter communicates with and when. That information can help the government identify confidential sources, even without the substance of the conversation.Secrecy makes the problem worse. If the government sends a 1509 summons for information about a journalist’s account to a phone company or tech platform, and the company complies with the request not to disclose it, the journalist may never learn that the government sought their information and may not have a chance to challenge the demand.Fort’s case is a prime example of this problem. T-Mobile produced six months of her phone call records without notifying her or giving her an opportunity to contest the demand.Is this the first time DHS has used 1509 summonses to target journalists?No. In 2018, the government used a 1509 summons to try to force the editor of an immigration law journal, Daniel Kowalski, to reveal information about a confidential source for a leaked DHS memo. In another case, ICE sent BuzzFeed a 1509 summons demanding information about its confidential sources for reporting about the first Trump administration’s plans to expand fast-track deportations of undocumented immigrants. DHS ultimately dropped both demands.Sometime between 2016 and 2022, ICE sent customs summonses to The Seattle Times and the Bangor Daily News, according to a subpoena-tracking database that Wired obtained from ICE through a public records request. The records requested by the summons are unknown.These examples may not represent the full scope of the problem, since the government may have sent other 1509 summonses targeting journalists to tech or phone companies that have never been disclosed.I’m a journalist, and I received notice of a 1509 summons. What should I do?If you receive a 1509 summons directly from the government, you can refuse to comply and can publish the summons. In some instances, DHS may drop the request, like it did with its demands to Kowalski and BuzzFeed. It is possible, however, that DHS will attempt to enforce the 1509 summons in court, in which case you can hire an attorney and object to enforcement of the summons. There are several organizations that may be able to represent you pro bono or help try to find an attorney who will.If you get notice from a platform or your phone company that it has received an administrative subpoena targeting your account, don’t ignore it. The platform may turn over your information to the government if you do not object. You may need to hire an attorney to file a motion to quash the demand in federal court.You can also reduce the amount of information available to investigators through administrative subpoenas by using services like Signal that minimize data collection and choosing a wireless carrier that notifies users about government demands.What can Congress do?Federal lawmakers can put limits on agencies’ administrative subpoena power and pass strong protections for journalists.The Subpoena Abuse Prevention Act, a bipartisan bill recently introduced in the House and Senate, would prohibit the use of administrative subpoenas to target or retaliate against the exercise of First Amendment rights, and would require a judge to approve demands for Americans’ phone call records. It would also require the government to inform recipients of administrative subpoenas that they can notify their customers about the demand, unless the government gets a court order forbidding disclosure.You can tell your member of Congress to support the Subpoena Abuse Prevention Act.The PRESS Act, a federal reporter’s shield law, would provide broader protections for journalists, including from administrative subpoenas, by limiting the government’s power to compel tech companies to disclose information from or about journalists’ accounts. It would also require the government to give a journalist notice and the opportunity to object if their information is sought.What can tech and phone companies do?Companies can give their users a meaningful chance to defend themselves. Every platform and phone company should have a policy that it will notify customers when the government seeks their information. Some companies have these notification policies already, but others — especially phone companies — do not. And even the tech platforms that say they notify users don’t always follow through.They should also provide users with copies of the subpoena, and give customers enough time to object or challenge it in court. In one recent example, Google gave one of its users just seven days to go to court to object to the disclosure of his information, and it didn’t even send him a copy of the subpoena. That is wholly insufficient.Companies can also resist government demands for their users’ information by filing suit themselves.DHS should not be abusing its administrative subpoena power to surveil who journalists call and what they do online. Fort and Lemon’s cases are not the first where DHS has used 1509 summonses to target the press. If Congress, tech platforms, and phone companies don’t step up, it won’t be the last.
