Controversial Investigative Tactics by U.S. Security Agencies
A Controversial Investigative Tool
The investigative arm of the U.S. Department of Homeland Security (DHS), typically focused on combating transnational crime, has released new data. According to court documents, the agency has issued at least 185,000 administrative subpoenas since the start of the Donald Trump administration. This figure indicates that investigative bodies are increasingly relying on tools that allow for the acquisition of data without prior judicial approval.
For comparison, previous analysis shows that between 2016 and August 2022, Immigration and Customs Enforcement (ICE) issued approximately 170,000 such documents. The new statistics emerged as part of a lawsuit initiated by the Electronic Frontier Foundation (EFF) under the Freedom of Information Act (FOIA).
Unchecked Power
Administrative subpoenas represent a powerful, yet poorly regulated, investigative mechanism. Unlike warrants issued by a grand jury, the government is not required to explain to a court why it needs specific data or why it is requesting information from private companies. This tool is frequently used to identify online critics or to gather information about participants in protest actions.
Congress originally granted this authority to the Customs Service a century ago to allow for the inspection of business records concerning imported goods. In 2003, this authority was transferred to the DHS. However, while the department previously claimed the mechanism was used solely for customs and immigration-related purposes, the Trump administration now asserts that it has the right to use this power for any “broad investigative portfolio.”
Criticism and Potential Consequences
Senator Ron Wyden has labelled the practice a “domestic surveillance program,” noting that it poses a serious threat to citizen privacy and freedom of expression. Experts argue that the problem lies in the fact that sending such subpoenas to companies carries almost no legal barriers. If a company refuses to provide information, the agency can sue them in court or attempt to obtain the data through other means.
Senator Wyden plans to introduce legislative changes to curb the misuse of this mechanism by federal agencies. While the exact details regarding the types of data obtained through the 185,000 requests remain unknown, rights advocates find it alarming that investigative bodies are operating without internal control mechanisms.