DHS officials are able to issue \u00ab\u00a0administrative subpoenas\u00a0\u00bb to tech companies demanding data on users without aproval from a judge.<\/b>
\nThe US government has found a frighteningly efficient way to keep tabs on citizens who criticize the government: just demand their personal data from Google.
According to recent reporting from the , a 67-year-old retiree sent a polite email to an attorney for the Department of Homeland Security urging mercy for an asylum seeker facing deportation to Afghanistan. The man, identified only as Jon, had read about the Afghani native\u2019s case, and his fear that he would be persecuted should he ever return to his home country.
\u201cDon\u2019t play Russian roulette with [this man\u2019s] life,\u201d Jon told lead DHS prosecutor, Joseph Dernbach, in the email. \u201cErr on the side of caution. There\u2019s a reason the US government along with many other governments don\u2019t recognise the Taliban. Apply principles of common sense and decency.\u201d
Five hours later, per WaPo, Jon received a response \u2014 not from Dernbach or the DHS, but from Google.
\u201cGoogle has received legal process from a Law Enforcement authority compelling the release of information related to your Google Account,\u201d it read. The email advised Jon that the \u201clegal process\u201d was an administrative subpoena, issued by DHS. Soon, government agents would arrive at his home.
The subpoena wasn\u2019t approved by any judge, and it didn\u2019t require probable cause. Google gave Jon just seven days to challenge it in federal court \u2014 not nearly enough time for someone without a crack team of lawyers on retainer. Even more maddeningly, neither Google nor DHS had sent him a copy of the subpoena itself, leaving Jon and his attorney in the dark.
\u201cHow do you challenge a subpoena you don\u2019t have a copy of?\u201d an attorney Jon consulted, Judi Bernstein-Baker, told WaPo.
As DHS assistant secretary Tricia McLaughlin told the newspaper in a statement, the law grants the department \u201cbroad administrative subpoena authority,\u201d meaning legal demands from DHS officials don\u2019t need to pass independent review.
\u201cThere\u2019s no oversight ahead of time, and there\u2019s no ramifications for having abused [administrative subpoenas] after the fact,\u201d Jennifer Granick, an attorney for the American Civil Liberties Union \u2014 which is representing Jon pro bono \u2014 told WaPo. \u201cAs we are increasingly in a world where unmasking critics is important to the administration, this type of legal process is ripe for that kind of abuse.\u201d
When uniformed DHS agents did show up at Jon\u2019s front door weeks later, they grilled him for over 20 minutes, pointing to his mentions of \u201cRussian roulette\u201d and the \u201cTaliban\u201d as suspicious. In the end, the field grunts \u2014 who had been dispatched by an anonymous official in Washington DC \u2014 agreed Jon hadn\u2019t broken any laws.
When Jon finally received a copy of the subpoena from Google \u2014 22 days after they issued their seven-day notice \u2014 it demanded his data going back weeks: timestamps for his online activity, every known IP and physical address, his credit card, driver\u2019s license, and Social Security numbers.
\u201cIt doesn\u2019t take that much to make people look over their shoulder, to think twice before they speak again,\u201d Nathan Freed Wessler, another of Jon\u2019s ACLU attorneys, told WaPo. \u201cThat\u2019s why these kinds of subpoenas and other actions \u2014 the visits \u2014 are so pernicious. You don\u2019t have to lock somebody up to make them reticent to make their voice heard.\u201d
\u201cOur processes for handling law enforcement subpoenas are designed to protect users\u2019 privacy while meeting our legal obligations,\u201d a Google spokesperson told WaPo. \u201cWe review all legal demands for legal validity, and we push back against those that are overbroad or improper, including objecting to some entirely.\u201d
Credit where it\u2019s due, though: Google delayed handing over Jon\u2019s data long enough for the ACLU to challenge the subpoena on his behalf, though it didn\u2019t explain why. Of course, that meant DHS agents still tracked down his address some other way \u2014 part of a growing trend of federal agencies surveilling and harassing random people who haven\u2019t even been arrested, let alone convicted of a crime.<\/p>\n