Big Data, Administrative Subpoenas, and Free Speech

Twenty-eight Congressional Democrats, led by US Representatives Pramila Jayapal and Robin Kelly, sent a letter on March 2 to 10 major tech companies – including Meta, Google, Apple, Microsoft, X, and Tik Tok – requesting “detailed information regarding your company’s receipt of, response to, and compliance with administrative subpoenas issued by the Department of Homeland Security[.]” The letter referenced Homeland Security’s use of administrative subpoenas to identify persons “based on protest, political advocacy, or criticism of federal immigration policy.”

Administrative subpoenas are issued directly by the agency seeking the information, rather than by a judge.

According to sources reported by the New York Times, Homeland Security has issued hundreds of subpoenas in recent months to Google, Reddit, Meta, and Discord. The subpoenas seek names, email addresses, telephone numbers, and other identifiers to learn who is tracking or criticizing the agency. (Homeland Security’s subpoena authority is found in 8 USC Sec. 1225(d)(4)).

Administrative subpoena power has long been a part of criminal investigations. But it has recently drawn attention and concern as a tool used by Homeland Security to identify individuals who participate in protests or criticize the agency, including ICE and Border Patrol. The tech companies receiving these subpoenas also have varying and opaque policies or guidelines about how they respond to subpoenas, or how/whether they will notify customers that their records have been subpoenaed.

A troubling account was reported in February by the Washington Post. Last fall, a retired insurance agent (who is a US citizen) saw a news report about an Afghan immigrant who faced deportation. The citizen sent an email to the federal prosecutor named in the news report, asking for “common sense and decency” for the immigrant. Several hours later, the citizen received a notice from Google telling him that an enforcement process had begun, compelling the release of information related to his account. Within two weeks, Homeland Security agents appeared at his home to question him. His efforts to get information from Google and from Homeland Security about the subpoena were truly dystopian. The ACLU ultimately stepped in, moving to quash the subpoena. The agency withdrew it before a ruling. But the experience left him anxious about expressing his political opinions or traveling outside the country. A chilling of free speech, indeed.

Surveillance of activists by the government is not new (e.g., the infamous FBI surveillance of Black civil rights leaders during the 60s). But the scale and omnipresence of the current data ecosystem are new. Automatic license plate readers on public streets, private Ring cameras, facial recognition technology, our phones, our computers – all capture so much data continuously, which, in turn, can be used to identify who we are, where we go, and whom we communicate with. Because the information is collected (and typically owned) by private companies, the companies can disclose it in response to an administrative subpoena. And when the subpoenas are used to identify and possibly intimidate people who criticize the federal government, their use constitutes a dangerous threat to our First Amendment rights.

Homeland Security is not the only federal agency that wants the ability to surveil citizens. The recent court battle between technology company Anthropic and the Department of Defense (DoD) hinges on the company’s refusal to allow its AI technology to surveil people in the US, or to run fully autonomous weapons systems. DoD apparently finds that an unacceptable limitation. DoD responded by designating the company a “supply chain risk,” which, Anthropic claims, will cause it to lose billions in revenue. As of this writing, the dispute was still in court. It is disquieting to know that heightened surveillance of citizens, not to mention fully automated weapons systems, are apparently DoD contracting must-haves.

The March 2 Congressional letter asked for a response from the companies no later than March 26. Don’t hold your breath. No Republicans signed onto the letter, although free speech is a bipartisan matter. Nevertheless, the letter represents an important starting point to impose guardrails on administrative subpoena power so that we can protect our democracy. More information about protecting your privacy is available from the Electronic Frontier Foundation at www.eff.org, or the ACLU at aclu.org.