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All federal law enforcement agencies need clear, public guidelines to protect journalists

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  1. Newsgathering
Records RCFP obtained show what can happen when federal law enforcement agencies lack clear rules to protect press freedom.
Photo of U.S. Department of Homeland Security sign
(Flickr photo/nsub1)

Last October, U.S. Attorney General Merrick Garland revised the Department of Justice news media guidelines to expressly prohibit members of the Department from using subpoenas or other investigative tools against journalists, with only narrow exceptions. The new guidelines, which were updated following extensive advocacy efforts led by the Reporters Committee for Freedom of the Press and other news media representatives, are a key step toward protecting journalists and their sources from federal prosecutors and DOJ law enforcement agencies, including the FBI.

But the guidelines do not cover other departments or non-DOJ agencies, including the Department of Homeland Security, which employs nearly half of all federal law enforcement officers. The largest law enforcement agency, Customs and Border Protection, which alone has more officers than all Justice Department components, falls within DHS, as does Immigration and Customs Enforcement and the Secret Service.

The new DOJ guidelines should be a model for DHS and other federal law enforcement agencies to adopt comprehensive policies that protect journalists from investigations. That’s because we’ve seen what can go wrong without policies to protect against misusing investigative authority. DHS agents have repeatedly used these tools against journalists, and could continue to do so unless there are strong protections for members of the news media.

To better understand how DHS agencies interpret their authority to use these invasive tools, the Reporters Committee fought to obtain documents under the Freedom of Information Act that show how CBP officials tried to unmask the person behind an anonymous Twitter account critical of then-President Donald Trump.

Although this account may not be run by a reporter, the documents provide insight into how, procedurally, a failure to establish proper guidelines at DHS agencies could open the door to improper investigations of journalists and their sources, and ultimately chill important reporting in the public interest. At base, the case is about a lack of checks on overreach, checks that are essential to protect the press from undue intrusions as well.

CBP’s efforts to unmask ‘@ALT_uscis’

In 2017, CBP attempted to unmask an anonymous Twitter account using an administrative summons. The account — “@ALT_uscis,” run by a vocal critic of the Trump administration’s immigration policies who claimed to be a federal employee — came to top CBP officials’ attention when it tweeted about seeking “personal dirt” on corrupt immigration officers. The @ALT_uscis account also briefly posted a purported leak of emails among CBP agents discussing killing migrants and using racial epithets, but it deleted the tweets after determining those emails might be “bogus.”

Soon after, in March 2017, a CBP agent faxed an administrative summons to Twitter seeking “[a]ll records” regarding the @ALT_uscis account, including “User names, account login, phone numbers, mailing addresses, and IP addresses.” But the authority to issue a “1509 summons” — which is named after the implementing law — requires that the documents demanded relate to CBP’s oversight of merchandise imports and other customs matters. There was no apparent connection between CBP’s summons for the @ALT_uscis account information and merchandise imports.

Twitter resisted the summons from CBP regarding @ALT_uscis, arguing in a lawsuit that it was improperly issued and even unconstitutional. Twitter’s lawsuit made the summons public and drew critical inquiries from members of Congress. CBP quickly backed down and withdrew the summons once it became public, and the Homeland Security inspector general later recommended numerous reforms to CBP’s process for issuing these kinds of summonses.

In other instances, DHS agents have tried to use 1509 summonses against journalists and their sources. In 2020, ICE sent a 1509 summons to BuzzFeed News in an attempt to force the outlet to identify one of its sources. And in 2018, ICE tried to use a 1509 summons to identify the source of a memo leaked to an immigration law journal.

The Reporters Committee’s FOIA requests and lawsuit

To learn more about how DHS agents use these kinds of investigative tools, the Reporters Committee filed several FOIA requests and, ultimately, a lawsuit in early 2018 for records relating to CBP’s summons for the @ALT_uscis account information. Over more than three years of litigation, the government released thousands of pages, which showed internal disputes over the legality of the summons.

In October 2021, a federal judge ordered the government to disclose additional records. These included internal CBP discussions about the investigation of @ALT_uscis and efforts to revise agency guidelines about 1509 summonses in the wake of the scandal, as well as decades-old memos on the scope of the summons authority.

Even after the scandal became public and CBP withdrew its 1509 summons to Twitter, officials attempted to defend the summons in internal reports. For example, in response to the Reporters Committee’s lawsuit, the government fought unsuccessfully to withhold an “executive summary” of the investigation prepared for CBP leadership in the immediate wake of Twitter’s lawsuit, as well as prior drafts. As this executive summary evolved, its authors repeatedly misstated the limited legal authority for issuing a 1509 summons. Rather, the summary emphasized that the summons is “widely used” by agents in ICE and CBP. (There is nothing to suggest that the inclusion of these misstatements was somehow nefarious; indeed, to the extent this was just a feature of bureaucratic inertia, that highlights the need for agency-wide guidance all the more.)

The documents obtained by the Reporters Committee also show that similar misstatements of CBP’s legal authority were included in initial drafts of an official response to Sen. Ron Wyden (D-Ore.), who wrote to the head of CBP asking whether the @ALT_uscis summons was properly issued. In initial drafts of a response to Wyden, top CBP officials proposed including the executive summary’s misrepresentations of the law. These statements did not ultimately appear in CBP’s letter to the senator.

Until the Reporters Committee sued, the government withheld decades-old guidelines about the 1509 summons that further underscore how much CBP exceeded its authority by seeking to unmask @ALT_uscis. A 1991 directive repeatedly emphasized that a 1509 summons can only be issued for “records for which there is probable cause to believe that they relate to merchandise whose importation is prohibited.”

Following the scandal, CBP revised its directive regarding 1509 summonses. But the released documents show CBP clashed with ICE during the revision process. According to April 2018 emails, there was a “difference of opinion” between CBP and ICE attorneys. ICE had a “contrary legal view of section 1509,” although the documents do not make clear what the disagreement was, exactly.

For its part, ICE has used 1509 summonses in questionable ways, even beyond sending them to journalists. Most recently, in March 2022, Wyden found ICE investigators had been using summonses “to conduct bulk surveillance of Americans’ financial records.” And in 2014, an ICE agent working in Argentina sent a summons to Twitter seeking information about accounts that criticized a local prosecutor.

The CBP documents show that, rather than “determine a definitive DHS legal view for interpretation of section 1509 summonses” back in 2018 — which one CBP official noted would take additional time — it seems CBP issued its own narrow directive, leaving ICE agents to follow a separate interpretation of their authority to use this tool.

Similarly, over the summer, ICE issued its own directive similar to a prior version of DOJ’s news media guidelines. The ICE directive, which is much weaker than the DOJ regulations issued last October, limits the use of “compulsory investigative tools” to obtain information from or about journalists, including 1509 summonses.

The Reporters Committee reached out to CBP, ICE, and DHS about the need for department-wide guidance on using administrative summonses. None of the agencies responded.

The need for a DHS policy

These @ALT_uscis documents show how this fractured approach leaves agents within two of the most powerful federal law enforcement agencies operating under separate rules even though they both fall within DHS.

DHS — and all federal departments — need to follow the DOJ’s lead and issue clear, public guidelines regarding their agents’ authority and obligations, particularly when that authority has the potential to jeopardize the free press and chill speech. Beyond this case, a department-wide policy would provide guardrails for how CBP, ICE, and other DHS agencies deploy this “widely used” tool, including against journalists and their sources.

For decades, we’ve seen repeatedly that federal law enforcement will use all tools at their disposal, and that a lack of clear internal checks invariably leads to overreach. It’s time for DHS to take concrete steps to ensure reporters that they will not be targeted for investigations when they are simply doing their job.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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