Homeland Security’s Expanding Utilize of Subpoenas: A Threat to Digital Privacy
The Department of Homeland Security (DHS) is facing increasing scrutiny over its use of administrative subpoenas to gather user data from tech companies like Google and Meta. This practice, revealed in recent reports, raises significant concerns about the erosion of digital privacy and the potential chilling effect on First Amendment rights.
The Rise of Secret Subpoenas
Unlike search warrants, administrative subpoenas do not require judicial approval. This allows DHS to request information – such as names, addresses, IP addresses, and session times – directly from tech companies without a judge’s oversight. Although these subpoenas cannot compel companies to hand over the content of communications, the information they can obtain is still deeply personal and potentially damaging.
The Electronic Frontier Foundation (EFF), along with the ACLU, has been vocal in its opposition to this practice, arguing that DHS is abusing its authority. The EFF, joined by the ACLU of Northern California, has sent a letter to major tech companies – including Amazon, Apple, Google, Meta, and TikTok – urging them to resist these subpoenas unless presented with a court order.
Targeting Critics and Protesters
Recent cases demonstrate a disturbing pattern. In April 2025, DHS subpoenaed Google seeking to identify a Cornell PhD student who briefly attended a protest. Google initially complied without providing the student an opportunity to challenge the request. Similarly, DHS sought to unmask users of Instagram accounts tracking ICE activity in California and Pennsylvania. In another instance, a retiree faced a visit from federal agents after emailing DHS with a critique of their asylum policies.
These examples suggest that DHS is targeting individuals engaged in protected speech – those documenting ICE activities, criticizing the government, or participating in protests. The ACLU successfully challenged the subpoenas in the California and Pennsylvania cases, forcing DHS to withdraw them, but the initial attempts highlight the agency’s willingness to overreach.
Tech Companies’ Role and Responsibilities
Tech companies are caught in a difficult position. While they have a responsibility to protect their users’ privacy, they also face legal pressure to comply with government requests. The EFF is urging companies to adopt three key practices:
- Insist on Court Intervention: Demand a court order before complying with any DHS subpoena, given the agency’s track record of unlawful requests.
- Provide User Notice: Notify users when they are the target of a subpoena, allowing them to seek legal counsel.
- Resist Gag Orders: Fight gag orders that prevent them from informing users about subpoenas.
Google and Meta received a combined 43,142 subpoenas in the first half of 2025, according to their transparency reports, though the breakdown by type isn’t available. This underscores the sheer volume of requests tech companies are handling.
The Legal Landscape and Future Concerns
An administrative subpoena is an investigative tool, but recipients are not legally compelled to comply without a court order. DHS must either drop the subpoena or seek judicial approval if a company refuses. The EFF and ACLU are pushing companies to consistently require this court intervention.
The DHS Inspector General has previously criticized the legal authority DHS attempted to use in the Pennsylvania case, raising further questions about the legality of these subpoenas. The lack of transparency surrounding the number of subpoenas issued by DHS adds to the concern.
FAQ
What is an administrative subpoena? It’s a request for information issued by a federal agency like DHS, not approved by a judge.
Can DHS access the content of my communications with a subpoena? No, administrative subpoenas cannot compel companies to hand over the content of communications.
What should I do if I receive notice of a subpoena? Seek legal counsel immediately.
Are tech companies required to comply with DHS subpoenas? No, they can challenge the subpoena in court.
Did you know? DHS withdrew subpoenas in California and Pennsylvania after they were challenged in court, suggesting the agency’s legal basis was questionable.
Pro Tip: Regularly review the privacy policies of the tech platforms you use to understand their procedures for handling government data requests.
This situation demands continued vigilance and advocacy to protect digital privacy and freedom of expression. Stay informed, contact your representatives, and support organizations like the EFF and ACLU in their efforts to hold DHS accountable.
Explore further: Read the full EFF letter to tech companies.
