‘Outrageous conduct’: Federal judges twice rejected DHS’s request for a journalist’s data, so the agency found a way around them

Federal judges twice rejected search warrant requests for YouTube account data tied to journalists Georgia Fort and Don Lemon, according to court papers reviewed by The Guardian. Prosecutors had sought the information in connection with criminal charges from a January protest at a Minneapolis church that the two were covering. Both have pleaded not guilty.

A judge found the government had not shown probable cause of a crime and said Fort and Lemon should be told so they could challenge the requests, according to court papers. The government later withdrew those warrant requests.

Less than a month after that withdrawal, the Department of Homeland Security served Google an administrative summons under 19 USC 1509, a customs statute. The summons sought YouTube account information and told the company to keep the request secret. It required only a DHS official’s approval, not a judge’s.

Former DHS officials said the customs statute did not apply to the church protest case

John Roth, who served as DHS inspector general from 2014 to 2017, described the move this way: “It’s outrageous conduct on so many levels. It’s hard to know where to begin.” He added, “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.”

Chris Duncan, a former DHS lawyer, said the customs laws “have absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter.” Caitlin Vogus of the Freedom of the Press Foundation noted there is no judge reviewing whether such a demand is legitimate.

DHS also obtained six months of Fort’s T-Mobile telephone records covering more than 10,000 calls and text messages, her lawyers wrote. Fort was not notified until mid-July, when government lawyers produced the records. Her lawyers said they were “stunned” that the government had obtained a log of her communications after a judge had warned about records involving a journalist.

Vogus said the phone data “can help the government uncover a journalist’s confidential sources.” T-Mobile said it reviews government demands and responds in accordance with the law but does not comment on specific requests. The Justice Department and DHS declined to comment.

The same type of summons also sought YouTube subscriber information for Democracy Now, Megyn Kelly, the Milwaukee Journal-Sentinel, and journalist Brendan Gutenschwager. Some cited videos were protest livestreams; others were news reports or interviews, including one with protest leader Nekima Levy Armstrong and another with the church pastor.

Vogus said it was not clear why the government needed subscriber details such as IP addresses and login times for the charges against Fort and Lemon. “It’s not a crime to post a YouTube video,” she said.

In a separate Minneapolis case involving 15 activists charged with conspiracy, DHS obtained financial records from the Sunrise Movement, the Service Employees International Union, the Communications Workers of America, and Venmo records for Voices for Racial Justice, none of which face charges. PayPal declined to comment. Similar questions have been raised about ICE Medicaid data sent to Palantir.

Nathan Freed Wessler of the ACLU said DHS has a history of using the 1509 summons for records outside its customs scope and against speech protected by the First Amendment. The New York Times reported in February that DHS had served hundreds of administrative subpoenas on social media companies.

Government lawyers argued in a filing that the statute authorizes DHS to investigate potential crimes to ensure compliance with laws once administered by the Customs Service. Duncan called that reading overbroad and said Congress intended the power only for customs investigations.

Google did not turn over the YouTube data. The company told DHS the request lacked evidence tying it to a customs investigation. A Google spokesperson said the company reviews each demand and pushes back when a request is too broad or uses the wrong process.

Companies may ignore a 1509 summons they view as unlawful, forcing the government to seek a court order. The Guardian reported it found no cases in which the government tried to enforce such a summons outside the traditional customs setting. Fighting one in court can cost tens of thousands of dollars, Electronic Frontier Foundation lawyer F. Mario Trujillo said. Senators have separately asked whether DHS complies with court orders.

In 2017, Twitter sued over a 1509 summons seeking to identify the account @alt_uscis; DHS withdrew it. Last year, after a user challenged a Meta summons aimed at an account that tracked ICE activity near Philadelphia, both sides argued in court on January 15, and DHS withdrew the summons the next day. A 2017 inspector general report found inconsistent and, in some cases, improper use of the summonses and recommended tighter oversight.