Fallout from Twitter summons reveals widespread CBP violations

The Customs and Border Protection agency may have inadvertently brought attention to its own widespread misuse of summons authority while attempting to out a rogue employee on Twitter.

That's the conclusion from a Department of Homeland Security Inspector General report issued Nov. 16, which found that as many as one out of five summonses CBP issues may exceed the scope of the agency's authority.

Shortly after Donald Trump was elected president, a series of federal departments and agencies saw "alternative" government social media accounts pop up online, issuing messages of dissent or contradicting administration policy. In March 2017, CBP issued a summons to Twitter in relation to one such account, @Alt_USCIS, seeking the identity of the user. The account, which is still active, frequently tweets about immigration-related matters at the United States Citizenship and Immigration Services.

Twitter responded by suing the government in April 2017, and the summons was withdrawn. However, the incident wound up kicking off an investigation by the IG office, which subsequently found that CBP was routinely issuing summonses to third-party organizations for information under an authority explicitly designed to crack down on the importation of prohibited merchandise. The potential employee misconduct at the center of CBP's summons to Twitter was "unrelated."

"Accordingly, CBP may have exceeded the scope of its authority under Section 1509 when it issued the summons to Twitter," investigators wrote.

Further, investigator found dozens of instances between 2015 and 2017 where CBP employees used that same authority – known as Section 1509 -- for drug-smuggling cases, despite the fact that the law expressly forbids its use in this context. Auditors also found instances where summons authority was used to catch employees requesting sick leave under false pretenses, another violation.

The evidence demonstrates "a lack of understanding" about the proper use of Section 1509 powers and "indicates that these summonses are being used to obtain records – including records from third parties – in a wide range of cases" outside of the section's scope.

The report makes three recommendations, advising CBP update its internal guidelines to better explain how and when employees should use the authority, provide additional training to personnel and conduct an internal report looking at Section 1509 use across CBP. The agency concurred with all three recommendations.

In a written response, Sean Mildrew, the senior component accountable official at CBP, indicated that CBP had already begun implementing corrective actions and that all future summonses will be subject to an internal review to ensure it will meet the necessary legal thresholds.

"The new policy, presently in effect, requires that all summons requests undergo a legal sufficiency review and receive final written approval by the Assistant Commissioner of [the Office of Professional Responsibility] prior to issuance," wrote Mildrew.