Emptywheel investigation reveals DHS used customs-summons power to obtain journalists', unions', and non-profits' records without judicial oversight

Reporting first published July 22, 2026 by independent journalist Marcy Wheeler, based on exhibits filed in the ongoing federal criminal case against Minneapolis journalists Georgia Fort and Don Lemon, revealed that the Department of Homeland Security had been using an administrative summons authority intended for customs enforcement -- 19 U.S.C. Sec. 1509 -- to obtain Fort's phone toll records after a federal magistrate judge twice rejected warrant requests for the same and similar information in the same case. The court exhibits showed DHS's Homeland Security Investigations obtained a T-Mobile response to a customs summons for Fort's records on April 12, 2026, continuing to rely on the authority as late as May 2026; prosecutors would not tell Fort's attorneys whether the practice was ongoing.

The Guardian's August 29, 2026 reporting substantially expanded the documented scope of the practice. DHS served Google a 1509 summons for YouTube account information -- including IP address and login-history data -- tied to Fort and Lemon, as well as to the outlet Democracy Now, conservative podcaster Megyn Kelly, the Milwaukee Journal-Sentinel, and independent journalist Brendan Gutenschwager, after a judge had already twice rejected a warrant covering some of the same accounts and specifically said he wanted the targets notified so they could contest the request; DHS's summons carried no such notice requirement. Google did not comply, telling DHS it had not shown the request was related to a customs investigation. Separately, in a case where 15 activists face criminal conspiracy charges, DHS used a 1509 summons to obtain financial records from the Sunrise Movement, the Service Employees International Union, and the Communications Workers of America, and Venmo records for the non-profit Voices for Racial Justice -- none of which faced any charges or were alleged to have any connection to a customs matter.

Unlike a grand-jury or judicial subpoena, a 1509 summons requires only a DHS official's sign-off, can instruct its recipient to keep it secret, and gives the targeted person no notice or opportunity to contest it before their records are turned over. DHS's own inspector general found "inconsistent -- and, in some cases, improper" use of the same authority in a 2017 report following an earlier challenge (Twitter's suit over a 1509 summons seeking to unmask a DHS-critical account, which the agency withdrew). Legal experts on record in The Guardian's reporting -- a former DHS lawyer, the agency's own former inspector general, and attorneys from the ACLU and the Electronic Frontier Foundation -- said the statute has no application outside an actual customs investigation and that its use here was "outrageous" and had "absolutely nothing to do with a domestic situation at a church, a social media post, even an immigration matter." The Trump administration has defended its authority to use the statute this broadly in court filings, arguing the law is not limited to duties and tariffs. Both DOJ and DHS declined to comment on the record for The Guardian's story.

Updates

2026-09-01 — Wyden and Jayapal asked GAO to investigate the summons practice [3]

Sen. Ron Wyden and Rep. Pramila Jayapal asked the Government Accountability Office to investigate DHS's use of customs summonses outside of customs matters and to audit HSI's use of non-disclosure language in the summonses, which the lawmakers said is not legally binding but pressures recipients into silence. They also asked the Judicial Conference to amend federal subpoena templates to make clear that recipients may disclose a subpoena's existence absent a court order. A GAO spokesperson confirmed the office received the request. The lawmakers separately asked GAO to identify what changes, if any, DHS made to its summons policies after the 2017 inspector-general finding.