US Immigration and Customs Enforcement, ICE agents are utilizing an obscure legal instrument to obtain information from elementary schools, news organizations, and abortion clinics, in ways that experts believe may be illegal. The administrative subpoenas, known as 1509 custom summonses, are intended only for criminal investigations concerning illegal imports or unpaid customs duties. However, according to legal experts and several recipients of the 1509 summonses, the agency has used them to request records that seem to have little or nothing to do with customs violations.
An analysis of an ICE subpoena tracking database obtained through a Freedom of Information Act request by WIRED revealed that agents issued more than 170,000 custom summonses from the start of 2016 through mid-August 2022. While major tech firms, telecommunications companies, airlines, and money transfer services are the primary recipients of 1509s, it’s the outlier cases that have raised the most concern among legal experts. These cases involve requests for records from a youth soccer league in Texas, a major abortion provider in Illinois, an elementary school in Georgia, a major state university’s student health services, three boards of elections or election departments, and a Lutheran organization that provides refugees with humanitarian and housing support.
In at least two instances, ICE agents used the custom summonses to pressure news organizations to reveal information about their sources. All of this is done without judicial oversight. Matthew Guariglia, a policy analyst at the Electronic Frontier Foundation, a digital rights nonprofit, warns that the frequent and seemingly widespread use of 1509 summonses creates “a situation where this agency can fully go rogue” by using this tool in investigations that fall outside the scope of the law. This is a concerning situation.
Two ICE Homeland Security Investigations agents are cautioning against drawing conclusions about potential abuse of the 1509 customs summons without additional context about each investigation referenced in the database. The agents argue that because the agency is responsible for enforcing hundreds of laws pertaining to customs, including the distribution of child sexual abuse material (CSAM), it’s possible that each summons was issued for a permissible investigation under the law.
However, a former high-level DHS official, who spoke on the condition of anonymity, expressed serious concern about many of the summonses. The official pointed out that while it seems reasonable for ICE to inspect records from a company like Amazon for customs investigations, ICE’s authority to subpoena records from an abortion clinic is questionable. The official added that if ICE’s power is not controlled, it could get abused.
The 1509 customs summons is an administrative subpoena explicitly and exclusively meant for use in investigations of illegal imports or unpaid customs duties under Title 19 US Code 1509. Its goal is to provide agencies like ICE with a way to obtain business records from companies without having to go to a judge for a warrant.
The most detailed breakdown of how ICE has been using customs summonses to date is offered by the subpoena-tracking database. The data shows that between January 4, 2016, and August 22, 2022, ICE issued 172,679 summonses, averaging more than 70 per day. Half of these were sent to telecommunications companies like AT&T, T-Mobile, and Comcast. Big technology companies like Google, Meta, and Microsoft collectively received nearly 15,000 summonses. Of the thousands of summonses sent to social media companies, Meta and Snapchat make up the vast majority.
Only Meta responded to requests for comment, but it declined to answer questions and instead referred to its transparency reports. Over at least the past six years, the agency appears to have relied on 1509s more frequently; the number of summonses issued per year has doubled since 2016, the records show. On one day in October 2020, for instance, the Houston ICE office issued more than 1,000 summonses.
DHS agencies have come under increasing scrutiny for abusing 1509 customs summonses. In 2017, for instance, US Customs and Border Protection (CBP) was caught issuing an illegal customs summons to Twitter in an attempt to unmask the identity of @ALT_USCIS, an anonymous account that claims to be run by a US Citizenship and Immigration Services employee. The revelation sparked an investigation by the Office of the Inspector General into CBP’s use of 1509s, which concluded that 20 percent of the summonses it reviewed were either illegal or otherwise in violation of DHS policy.
Without access to the underlying subpoenas ICE issued in each use of a 1509, it’s difficult to know exactly why companies in the database were issued customs summonses. However, nearly everyone we spoke to was concerned about the types of organizations that received these summonses. Our investigation found that ICE issued scores of customs summonses to hospitals and hundreds to elementary schools, high schools, and universities. “It’s disturbing,” Mao says. “I really can’t imagine how a student or a health record could possibly be relevant to a permissible customs investigation under the law.”
The article discusses how ICE has been using customs summonses to target journalists and their sources. In 2018, ICE faxed a customs summons to an immigration lawyer in response to a blog he wrote that referenced a leaked ICE memo. Similarly, in 2020, ICE sent a customs summons to BuzzFeed News demanding that it identify the sources for an article. According to the records, The Seattle Times and The Bangor Daily News also received customs summonses, but The Seattle Times did not respond to a request for comment, and no one at The Bangor Daily News could recall receiving a summons from ICE.
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Author: Dhruv Mehrotra
