ACLU of Pennsylvania sues ICE for information on efforts to ‘unmask’ anonymous online critics

By The Philadelphia Inquirer

PHILADELPHIA — The Pennsylvania arm of the American Civil Liberties Union has filed a federal lawsuit to obtain information from U.S. Immigration and Customs Enforcement on the agency’s efforts to unmask anonymous social media critics.

ICE has issued administrative subpoenas to tech companies to obtain information about accounts that track the agency’s operations, identify agents, or express criticism of mass deportation.

The ACLU filed a Freedom of Information Act request with ICE in February for copies of unmasking subpoenas and related documents. The agency did not respond to the request, according to the lawsuit, which was filed Friday in the Eastern District of Pennsylvania.

The civil rights organization is interested in the subpoenas because the effort to unmask anonymous social media users raises First Amendment concerns, the complaint says.

“The processes by which ICE issues, enforces, and litigates Unmasking Subpoenas remains obscure,” the suit says.

The lawsuit asks a federal judge to declare that ICE unlawfully ignored the record request and order the agency to share the records immediately.

It is unknown how many subpoenas ICE issued tech companies, but there have been a number of cases — including two in the Philadelphia area — in which individuals learned the agency sought information about it, and went to court to fight the request.

Part of the problem with the subpoenas is that it is up to the social media companies to inform people that the government asked for their information, said Ari Shapell, an attorney with ACLU of Pennsylvania.

“My fear is that ICE has been using this as a tool in many cases and getting personal identifying information about people,” Shapell said. “The fact that we only know only about a handful of these that are litigated doesn’t mean that there aren’t many others under the radar.”

The Department of Homeland Security did not respond to a request for comment.

Pennsylvania’s ACLU chapter has battled with ICE over unmasking subpoenas in court before. In September, the Department of Homeland Security subpoenaed Meta — the parent company of Facebook and Instagram — for information about the people behind MontCo Community Watch, a grassroots group of Montgomery County activists who track and document ICE enforcement. A federal judge in October ordered Meta not to comply with the request. (DHS has since withdrawn the subpoena.)

And in February, the ACLU sued to prevent Google from sharing with ICE information about a Philadelphia man. The man read a Washington Post article in October about efforts to deport an immigrant who was evacuated from Afghanistan in 2021 because of fears about retribution from the Taliban for his support of the United States. The Philadelphia man sent an e-mail to the lead DHS attorney handling the case, who was referenced in the article, to express his disagreement with the deportation.

“Apply principles of common sense and decency,” the man wrote to the attorney, whose email address was publicly available online.

Within hours, according to the suit, ICE sent Google a subpoena in an effort to obtain the man’s private information. And a couple of weeks later federal agents showed up at the man’s home to question him about his email and views, the court filing says.

ICE withdrew its subpoena before a judge ruled.

U.S. Rep. Mary Gay Scanlon, a Democrat from Montgomery County, questioned former DHS Secretary Kristi Noem about ICE’s use of subpoenas last month during a congressional hearing. The agency has been using administrative subpoenas to “spy” on U.S. citizens who engaged in “core protected First Amendment speech,” Scanlon said.

“These efforts to unmask the administration’s opponents are clearly designed to intimidate and silence those who oppose the administration, and particularly DHS’s lawless policies,” the representative said.

Noem said she did not know how many subpoenas DHS sent to tech companies for information about critics, and pushed back on the notion that the department was using tools illegally.

“The individuals that work at the Department of Homeland Security, and specifically in investigations, follow all federal laws,” Noem said.

President Donald Trump fired Noem following her appearance in Congress.