The US government has found a frighteningly efficient way to keep tabs on citizens who criticize the government: just demand their personal data from Google.
According to recent reporting from the Washington Post, a 67-year-old retiree sent a polite email to an attorney for the Department of Homeland Security urging mercy for an asylum seeker facing deportation to Afghanistan. The man, identified only as Jon, had read about the Afghani native’s case, and his fear that he would be persecuted should he ever return to his home country.
“Don’t play Russian roulette with [this man’s] life,” Jon told lead DHS prosecutor, Joseph Dernbach, in the email. “Err on the side of caution. There’s a reason the US government along with many other governments don’t recognise the Taliban. Apply principles of common sense and decency.”
Five hours later, per WaPo, Jon received a response — not from Dernbach or the DHS, but from Google.
“Google has received legal process from a Law Enforcement authority compelling the release of information related to your Google Account,” it read. The email advised Jon that the “legal process” was an administrative subpoena, issued by DHS. Soon, government agents would arrive at his home.
The subpoena wasn’t approved by any judge, and it didn’t require probable cause. Google gave Jon just seven days to challenge it in federal court — not nearly enough time for someone without a crack team of lawyers on retainer. Even more maddeningly, neither Google nor DHS had sent him a copy of the subpoena itself, leaving Jon and his attorney in the dark.
“How do you challenge a subpoena you don’t have a copy of?” an attorney Jon consulted, Judi Bernstein-Baker, told WaPo.
As DHS assistant secretary Tricia McLaughlin told the newspaper in a statement, the law grants the department “broad administrative subpoena authority,” meaning legal demands from DHS officials don’t need to pass independent review.
“There’s no oversight ahead of time, and there’s no ramifications for having abused [administrative subpoenas] after the fact,” Jennifer Granick, an attorney for the American Civil Liberties Union — which is representing Jon pro bono — told WaPo. “As we are increasingly in a world where unmasking critics is important to the administration, this type of legal process is ripe for that kind of abuse.”
When uniformed DHS agents did show up at Jon’s front door weeks later, they grilled him for over 20 minutes, pointing to his mentions of “Russian roulette” and the “Taliban” as suspicious. In the end, the field grunts — who had been dispatched by an anonymous official in Washington DC — agreed Jon hadn’t broken any laws.
When Jon finally received a copy of the subpoena from Google — 22 days after they issued their seven-day notice — it demanded his data going back weeks: timestamps for his online activity, every known IP and physical address, his credit card, driver’s license, and Social Security numbers.
“It doesn’t take that much to make people look over their shoulder, to think twice before they speak again,” Nathan Freed Wessler, another of Jon’s ACLU attorneys, told WaPo. “That’s why these kinds of subpoenas and other actions — the visits — are so pernicious. You don’t have to lock somebody up to make them reticent to make their voice heard.”
“Our processes for handling law enforcement subpoenas are designed to protect users’ privacy while meeting our legal obligations,” a Google spokesperson told WaPo. “We review all legal demands for legal validity, and we push back against those that are overbroad or improper, including objecting to some entirely.”
Credit where it’s due, though: Google delayed handing over Jon’s data long enough for the ACLU to challenge the subpoena on his behalf, though it didn’t explain why. Of course, that meant DHS agents still tracked down his address some other way — part of a growing trend of federal agencies surveilling and harassing random people who haven’t even been arrested, let alone convicted of a crime.