04.07.17

Gardner, Lee Request Clarification on DHS/CBP Investigation Protocols in Wake of Twitter Incident

Washington, DC – United States Senators Cory Gardner (R-CO) and Mike Lee (R-UT) today sent a letter to Secretary Kelly at the Department of Homeland Security to clarify the U.S. Customs and Border Protection’s (CBP’s) protocols for investigating private companies and their customers. This letter follows reports that Twitter is suing CBP over an attempt by the agency to unmask the identity of a Twitter account holder who frequently criticizes the government.

The letter reads in full:

 

Dear Secretary Kelly:

We are writing to request clarification about U.S. Customs and Border Protection’s (CBP’s) internal protocols for ordering that private companies divulge their customers’ names, addresses, account holder details, or any other personally identifiable information.

 

Recent news reports allege that a Special Agent in Charge at CBP ordered Twitter to reveal the identity of a Twitter user who operates a parody account called @ALT_USCIS. That Twitter user frequently criticizes the government’s policies, specifically those policies in place at DHS and CBP. In order to better understand how and why CBP requests such information, please answer the following questions:

 

1.      Under what statutory authority may CBP pursue agency investigations of private companies, their customers, or individuals? If DHS believes such CBP investigations may rely on multiple provisions of law, please list all that apply.

2.      How many requests has CBP made of private companies for their customers’ personally identifiable information or any other information that might otherwise lead CBP to the identity of any of those companies’ customers?

 

3.      Is there any official established policy at DHS or CBP that provides guidance to officials within CBP on when and whether such requests should be made? If so, please provide a reference to that specific policy and if not, please indicate how such decisions are made.

 

4.      Prior to requesting that private companies divulge their customers’ personally identifiable information or other details about their customers, does CBP pursue any other courses of action to attempt to complete their investigation without making such a request? If so, please detail what courses of action CBP typically takes prior to making such a request.

5.      Is there any circumstance in which CBP would consider non-criminal speech a sole factor in whether to request that a private company divulge any of their customers’ personally identifiable information or any other information that might otherwise lead CBP to the identity of any of those customers?

 

6.      Are there instances outside of an official criminal or civil investigation in which CBP would request that a private company provide a customer’s personally identifiable information or any other information that might otherwise lead CBP to the identity of that customer? If so, please provide examples of such instances.

 

7.      Do DHS and CBP believe that an appropriate court order should be sought prior to requesting that a private company unmask the identity of one of their customers?

 

CBP must ensure that any properly authorized investigation does not disregard the rights to free speech enshrined in the First Amendment to the U.S. Constitution. Greater clarification as to how DHS and CBP approach such investigations will help the public understand your Department’s level of commitment to those fundamental principles. We look forward to your prompt reply.

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