DHS wants Big Tech to surrender private data of Trump critics
Criticize Donald Trump or any branch of government online and the Department of Homeland Security (DHS) could demand that Google or other Big Tech companies cough up your private data (name, location, biometric, and more) via a post-9/11 tool called an “administrative subpoena.”
In an open letter to Big Tech companies calling on them to reject this unconstitutional practice, the Electronic Frontier Foundation provides the details of just how serious this threat to liberty is:
We are calling on technology companies like Meta and Google to stand up for their users by resisting the Department of Homeland Security’s (DHS) lawless administrative subpoenas for user data.
In the past year, DHS has consistently targeted people engaged in First Amendment activity. Among other things, the agency has issued subpoenas to technology companies to unmask or locate people who have documented ICE’s activities in their community, criticized the government, or attended protests.
These subpoenas are unlawful, and the government knows it. When a handful of users challenged a few of them in court with the help of ACLU affiliates in Northern California and Pennsylvania, DHS withdrew them rather than waiting for a decision.
That is why we, joined by the ACLU of Northern California, have asked several large tech platforms to do more to protect their users, including:
1) Insist on court intervention and an order before complying with a DHS subpoena, because the agency has already proved that its legal process is often unlawful and unconstitutional;
2) Give users as much notice as possible when they are the target of a subpoena, so the user can seek help. While many companies have already made this promise, there are high-profile examples of it not happening—ultimately stripping users of their day in court;
3) Resist gag orders that would prevent companies from notifying their users that they are a target of a subpoena.
We sent the letter to Amazon, Apple, Discord, Google, Meta, Microsoft, Reddit, SNAP, TikTok, and X. (Emphasis mine)
Under US law, an administrative subpoena is issued by a federal agency without prior judicial oversight. A judicial subpoena requires a court order or authorization by a grand jury, but an administrative subpoena allows government agencies to compel the production of documents, records, or testimony directly as part of their regulatory or investigative functions.
Unfortunately, the abuse of authority granted by administrative subpoenas has expanded significantly since 9/11 — just as the NSA has abused authority to spy on phones and computers — even though it is a violation of the Fourth Amendment’s protection against unreasonable searches and seizures and the requirement that warrants be judicially approved and based on probable cause.
Critics of Donald Trump and/or the government are exercising their constitutionally protected free speech; they are not criminals which means that there is no “probable cause” to justify the DHS demand that Big Tech companies turn over the private data of their users. Kristi Noem is merely continuing a legacy that began when Donald Trump and the Republican Party took the PATRIOT Act and government spying up a notch during Trump’s first term in office.
For example, in December 2020 we learned that government had spied on our internet usage in 2019 by tracking our website visits using Section 215 of the PATRIOT Act — a provision of the PATRIOT Act that was originally scheduled to expire on December 15, 2019. But in one of Washington’s classic year-end-budget band-aids to avoid an imaginary government shutdown, a 90-day extension of the act was tucked inside a 2,000-page omnibus loaded with spending priorities that broke nearly every promise Trump and the Republican Party made in 2016.
As the new deadline of March 15, 2020 approached, Trump and the Republican Party recommitted themselves to making government spying on internet usage permanent. Even though that attempt failed and Section 215 was allowed to expire, the Republican-controlled Senate reauthorized the USA FREEDOM Act (passed in 2015 in response to Edward Snowden’s revelation about NSA spying) on May 14, 2020, which extended the domestic surveillance powers contained in the PATRIOT Act.
Section 215 of the PATRIOT Act is where the NSA “found” its authority to gain access to “business records” and other “tangible things” deemed “relevant” to fighting terrorism, and using a broad interpretation of Section 215, the agency created justification for the abusive and unconstitutional spying revealed by Snowden.
Unfortunately, renewing the USA FREEDOM Act left Section 215 in force, which meant that authorities were still able to collect vast amounts of personal data, including internet browsing and search histories. When the FBI was questioned about spying on our internet and browsing history in 2019, the agency suggested that the practice was entirely consistent with its interpretation of Section 215 of the PATRIOT Act:
“Section 215 has been an important tool used by the government to obtain this type of non-content information to combat cyber and other national security threats,” they said, referring to data about communications excluding the communications themselves.
“This type of non-content information can be obtained in a criminal investigation through the use of a grand jury subpoena, and we see no reason to prohibit the acquisition of the same type of information under Section 215 when investigating a threat to national security.”
Another thing the DHS administrative subpoena forcing Big Tech to turn over our private data has in common with PATRIOT Act spying was revealed in June 2023 when we learned about government’s use of “keyword warrants” to get around the bulk data limitations of the PATRIOT Act in order to spy on our internet usage (via Reason.com):
It’s called a “keyword warrant,” and it’s basically an open request for information on anyone who searches for particular terms online. Instead of the government saying, “I want all of arson suspect John Doe’s Google searches,” it’s, “I want information on all the people who searched Google for ‘arson.'”
The problem is evident. In the first scenario, investigators have already determined a suspect based on some evidence that they present to a judge, the typical standard for requesting a search warrant. In the second scenario, the government is asking search engines to provide data that they can use for whatever reason. It’s an open invitation for a fishing expedition. And many innocent people could get caught in the net. (Emphasis mine)
Think of every time you typed Donald Trump, DHS, and/or ICE into Google, Bing, or Yahoo. Now imagine an unelected and unaccountable government bureaucrat bent on destroying liberty making decisions about your intentions based on what you entered in a search bar?
If we allow the DHS to use the administrative subpoena to force Big Tech (a group of folks with close connections to Donald Trump) to surrender our private data, the Republican/Democrat duopoly will succeed in its plan to manipulate and pervert the rule of law for the benefit of the state.
David Leach is the owner of the Strident Conservative and the author of The New Axis of Evil: Exposing the Bipartisan War on Liberty. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.
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