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.”
Casting a Wide Net
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.