US Immigration and Customs Enforcement agents are using an obscure 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 summonses, are meant to be used only in criminal investigations about illegal imports or unpaid customs duties, WIRED found that the agency has deployed them to seek records that seemingly have little or nothing to do with customs violations, according to legal experts and several recipients of the 1509 summonses.
A WIRED analysis of an Immigration and Customs Enforcement (ICE) subpoena tracking database, obtained through a Freedom of Information Act request, found that agents issued custom summons more than 170,000 times from the beginning of 2016 through mid-August 2022. The primary recipients of 1509s include telecommunications companies, major tech firms, money transfer services, airlines, and even utility companies. But it’s the edge cases that have drawn the most concern among legal experts,
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.
All of this is done without judicial oversight.
“This is really dangerous,” says 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 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.
Two current agents from ICE’s Homeland Security Investigations (HSI) arm cautioned against drawing conclusions about potential abuse of the summons without additional context about each investigation referenced in the database. The agents, who asked not to be named because they are unauthorized to speak to the media, 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 Department of Homeland Security (DHS) official, who spoke on the condition of anonymity because their current employer forbids them from speaking to the press, expressed serious concern about many of the summonses. “It seems reasonable that ICE should be able to inspect records from a company like Amazon for customs investigations,” they say. “But what possible use or authority would ICE have for subpoenaing records from an abortion clinic?”
“It's like all power,” the official adds. “If it's not controlled, it gets 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 a law known as 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 subpoena-tracking database that WIRED obtained offers the most detailed breakdown of how ICE has been using the customs summons to date. 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.
Of these companies, only Meta responded to our 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. “They very clearly overuse these types of requests,” says Julie Mao, a cofounder and deputy director of Just Futures Law, an immigrant advocacy organization. “I don’t know what authority ICE thinks it has to issue these—the law clearly says they are only supposed to be used for customs inspections.”
In an email, ICE maintains that it issues 1509 summonses in accordance with its “broad legal authority" to investigate the transfer of money and goods across borders and within the US. “HSI uses these authorities to investigate a wide array of transnational crime and violations of customs and immigration laws,” the agency says, listing more than a dozen broad categories it says falls under its domain.
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.”
To figure out if these summonses were issued for customs investigations, we contacted 30 organizations that received them. Most did not respond, and many who did refused to speak on the record for fear of retaliation.
Two elementary schools say the summonses they received were not related to a merchandise investigation, although both refused to elaborate. Another two organizations—a religious charity that provides refugees with humanitarian services and a high school in North Dakota—say they could not remember receiving a summons. 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.
In at least two instances, news organizations were pressured to reveal information about their sources. An immigration lawyer and blogger named Daniel Kawalski says that in 2018, ICE faxed his office a customs summons in response to a blog he wrote that referenced a leaked ICE memo. A similar incident occurred in 2020 when BuzzFeed News reported that ICE had sent a customs summons 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. The Seattle Times did not respond to a request for comment, and the managing editor of The Bangor Daily News, Dan Macleod, says that no one in the newsroom could recall receiving a summons from ICE.
Emily Tucker is the executive director at the Center on Privacy & Technology at Georgetown Law and one of the authors of “American Dragnet,” a 2022 report about ICE surveillance. In an interview, Tucker not only expressed concern about how 1509 summonses have been used to target journalists, but about how it fits into ICE’s broader surveillance apparatus. “I can’t help but feel that the federal government is using ICE as a data vacuum,” she says. “They are looking for any way to access and integrate all kinds of data into massive databases.”
In March last year, US senator Ron Wyden, an Oregon Democrat who chairs the Senate Finance Committee, revealed that ICE had been using 1509 customs summonses to obtain millions of money transfer records, which were added to a database that was shared with hundreds of law enforcement agencies across the country. According to the American Civil Liberties Union (ACLU), it was one of the largest government surveillance programs in recent memory.
Immediately after Wyden’s investigation, the number of customs summons issued by ICE fell from 3,683 in March 2022 to 1,650 by the end of August, according to the records WIRED obtained.
“Investigations by the DHS Inspector General and by my own office have discovered that DHS components, including ICE, have been abusing their customs summons authority,” Wyden says. “As the son of an investigative journalist, I am particularly troubled that ICE has reportedly used customs summonses to pressure the media into revealing their sources.”
Robert Dunikoski, a former DHS deputy chief counsel, supervised a team of attorneys that advised HSI special agents on customs-related issues, including on the appropriate use of customs summonses. He says that while the summonses issued to news organizations are a “major red flag,” the subpoenas sent to elementary schools and youth soccer leagues could have a reasonable explanation. “Sadly, there are so many [CSAM] offenders out there,” Dunikoski says, including school staff members. “That’s probably why you are seeing hundreds of customs summonses to schools.”
The youth soccer league in Texas confirmed that it received a customs summons in August 2021 seeking employment records of an employee involved in a child exploitation investigation.
But the EFF’s 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.”
Nathan Freed Wessler, deputy director of the ACLU’s Speech, Privacy, and Technology Project, says that, while WIRED's findings strongly suggest that ICE is improperly issuing custom summonses, without access to all of the underlying subpoenas, it’s impossible to tell if ICE had abused its authority to issue them.
“These customs summonses are not some kind of free-for-all for anything that ICE thinks it has the authority to investigate,” he says. “Your findings make a clear case for an inspector general investigation. That’s what it's going to take to figure this out once and for all.”
Update 9:30 am ET, April 4, 2023: Added statement from ICE.
