Trump Administration uses obscure customs statute to circumvent search warrant

The Trump administration has been deploying an obscure legal maneuver to try to obtain private information on journalists, non-profits and unions, raising alarm over a power the government has asserted without judicial oversight, reported The Guardian.

In one instance, the government obtained six months of telephone records for Georgia Fort, a Minneapolis journalist. Fort was not notified of the request for her information, nor was she given a chance to contest the government’s effort to obtain them, her lawyers said in court papers.

In February of this year, federal prosecutors twice sought search warrants for account information for the YouTube channel of Fort and the journalist Don Lemon, both of whom have pleaded not guilty to criminal charges in connection to a protest at a Minneapolis church in January that they were covering. A judge twice rejected the request, writing that the government had failed to establish probable cause of a crime and that he wanted Lemon and Fort to be informed of the request so they could have a chance to challenge it. About a month after the judge’s ruling in late February, the government said it was withdrawing the request.

But officials hadn’t given up on getting the data.

Less than a month later, the DHS served Google with a different request for the YouTube information. This time, DHS utilized a different method that didn’t require approval from a judge, only a sign-off from a DHS official. It served Google an administrative summons citing an arcane provision of federal law – 19 USC 1509 – dealing with customs imports. The provision gives the DHS broad power to inspect records in order to determine whether duties and taxes are being correctly levied on imported items. It also instructed the recipients of the summons to keep it secret.

The DHS summons was issued under a statute that does give the agency broad power to demand records, but only in the limited circumstance of there being a need to investigate a customs issue, said Chris Duncan, a former lawyer at the Department of Homeland Security. “These laws have absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter,” he said.

These laws have nothing to do with a domestic situation at a church, a social media post, even an immigration matter

Chris Duncan, former lawyer at the DHS

“It’s outrageous conduct on so many levels. It’s hard to know where to begin,” said John Roth, who served as the inspector general for the Department of Homeland Security from 2014 to 2017. “This is an improper use of the subpoena under any circumstances. This is not a customs case; it is not a customs violation. They are not investigating a customs violation.”

The episode in Minnesota was particularly alarming because it appeared to be an end run around a judge who was skeptical of the government’s need for the information.

“There is no judge in the loop. You don’t have that independent authority to scrutinize the demand and to say whether or not it’s legitimate,” said Caitlin Vogus, a senior adviser at the Freedom of the Press Foundation.

The DHS also sought and obtained six months of phone records for Fort from T-Mobile, which included records for more than 10,000 calls and text messages. Fort was not notified the government was seeking the records until mid-July, when government lawyers produced them to her lawyers. Fort’s lawyers wrote in a filing this week they were “stunned” to see the government had unilaterally been able to obtain a log of her communications after a judge had warned them about obtaining records about a journalist.

“That’s very concerning because the information demanded can help the government uncover a journalist’s confidential sources,” Vogus said.

In a statement, T-Mobile did not address why it turned over the information.

“We take our responsibility to protect customers’ privacy and personal information very seriously. Our team carefully reviews government demands for customer information and responds in accordance with the law. We don’t comment on specific law enforcement demands,” the company said.

The Department of Justice and the Department of Homeland Security both declined to comment on the use of the summons.

In addition to Fort and Lemon, the DHS also sought information on the YouTube accounts for the left-leaning outlet Democracy Now, conservative podcaster Megyn Kelly, the Milwaukee Journal-Sentinel and an independent journalist named Brendan Gutenschwager. Some of the videos they cited in the summons were livestreams of the protest, but not all of them. The video cited as part of the request for information on Democracy Now involved a news report on the protest and an interview with Nekima Levy Armstrong, who led the protest. The video cited on the request for Kelly’s show included an interview with Jonathan Parnell, the pastor at the church.

It’s unclear why exactly the DHS wanted the YouTube account information, which includes things like a user’s IP address, and information about when a user was logging in.

“It’s still concerning that the government sought subscriber information for Lemon and Fort because there’s no reason it would need this information for the criminal charges that it’s brought against them,” Vogus said. “It’s not a crime to post a YouTube video, and it’s not at all clear why the government is demanding this information about Lemon and Fort’s YouTube accounts.”

The episode was the most recent example of an alarming pattern in recent months in which the DHS avoided judicial scrutiny and deployed a summons related to customs enforcement to pressure companies into turning over information on Americans. The US constitution’s fourth amendment protects against unreasonable searches and seizures and law enforcement generally must show a judge or a grand jury they have probable cause to believe the materials they want to search will produce evidence of a crime.

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