Civil Liberties Groups Sue for Information on ICE's Speech-Chilling Subpoenas
The feds have been demanding that tech companies identify the administration's anonymous online critics. That violates the First Amendment.
Is the Trump administration trying to unmask anonymous online critics in violation of the First Amendment? Two lawsuits have been filed recently to force Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) to turn over information regarding their alleged unconstitutional use of administrative subpoenas.
Since President Donald Trump retook office in January 2025, tech companies have reportedly seen an increased number of administrative subpoenas from the DHS and ICE demanding identifying information of certain users, including names, email addresses, phone numbers, and other identifying information. Known as unmasking subpoenas, these subpoenas are issued by the DHS and don't require judicial approval. Historically, unmasking subpoenas have been used to investigate serious crimes like child trafficking, reports The New York Times. But tech companies like Google, Reddit, Discord, and Meta told the Times that they've received hundreds of these subpoenas in recent months, often to identify anonymous users who have criticized ICE or shared information about ICE operations—all of which is firmly protected activity under the First Amendment.
To learn more about the subpoenas, the American Civil Liberties Union (ACLU) of Pennsylvania filed a Freedom of Information Act (FOIA) request in February for records concerning unmasking subpoenas "as part of an investigation into expanding efforts by DHS, through ICE, to…unmask anonymous social media users because of the content of their speech," according to the complaint filed against ICE last week. But the agency has so far ignored the FOIA request.
The FOIA request came after the ACLU Pennsylvania represented two Montgomery County residents whose personal data were requested in unmasking subpoenas last year over seemingly First Amendment–protected speech. One subpoena was for an individual who runs the ICE monitoring Montco Community Watch Instagram and Facebook pages. The other was for a man who was informed by Google that the DHS sought his identifying information after he emailed a government prosecutor, urging "common sense and decency" in an immigration case where an Afghan man was expected to be killed by the Taliban if deported.
But when challenged in court, the DHS dropped both subpoenas. "The government is taking more liberties than they used to," Steve Loney, a senior supervising attorney at the ACLU Pennsylvania, told the Times. By avoiding a legal order to stop the unmasking subpoenas, "the pressure is on the end sure, the private individual, to go to court."
It's currently unknown just how many unconstitutional unmasking subpoenas have been issued or complied with, in part, because it is left up to the tech companies to inform users of the requests for information, Ari Shapell, an attorney with ACLU Pennsylvania, told The Philadelphia Inquirer. "The fact that we only know only [sic] about a handful of these that are litigated doesn't mean that there aren't many others under the radar," Shapell continued.
Similarly, the Electronic Frontier Foundation (EFF), a nonprofit civil liberties organization, filed a complaint in the U.S. District Court of the District of Columbia against ICE and the DHS after both agencies ignored an additional FOIA request for unmasking subpoena records. "These subpoenas are dangerous because they don't require judges' approval," EFF wrote in a statement about the filing. "But they are also unlawful, and the government knows it."
"DHS and ICE should not be able to first claim they have the legal authority to unmask critics and then run from court when users challenge these administrative subpoenas," EFF's deputy legal director Aaron Mackey wrote in a statement. "The public deserves to know what laws the agencies believe give them the power to issue these speech-chilling subpoenas."
