ICE Is Creating A New Policy For Subpoenaing Reporters After Trying To Force BuzzFeed News To Turn Over Information

After Congress demanded changes, ICE officials will now have to get approval from senior leaders before issuing an administrative subpoena to members of the media.

Gregory Bull / AP

Immigration and Customs Enforcement officials are drafting a new policy that would force agents to get approval from senior leaders for any attempt to gain information from reporters through administrative subpoenas, officials told BuzzFeed News in a statement.

The development of a new policy comes more than a year after ICE issued an administrative subpoena during the Trump administration demanding BuzzFeed News identify its sources — an extraordinary attempt by the government to interfere with a news outlet acting under the protections of the First Amendment.

At the time, the move was met with criticism from media rights organizations such as the Committee to Protect Journalists and even former ICE leaders, who called it a blatant overreach. The agency later backed down after BuzzFeed News published a story detailing the demand.

The new policy, which follows a congressional directive included as part of the most recent government funding bill, would make it so ICE personnel must elevate decisions about whether to issue administrative subpoenas to members of the news media to the “the most appropriate senior ICE official, such as the ICE Director.” The agency must also make sure that its employees know of this new policy through training. ICE officials will also have to provide congressional staffers with a copy of the policy and the associated training details within 90 days.

“U.S. Immigration and Customs Enforcement (ICE) is committed to protecting the civil rights of all individuals including press freedoms,” ICE spokesperson Tamara Spicer said in a statement. “Based off language in the FY2022 appropriation bill, ICE is taking immediate steps to begin drafting a policy regarding the issuance of administrative subpoenas to members of the news media. The policy will elevate those decisions to the most appropriate senior agency official for review and approval and will ensure that appropriate training is provided to personnel.”

Jay Tilton, a spokesperson for the Senate Appropriations Committee, told BuzzFeed News late last year that congressional officials learned about the lack of a policy after meeting with the agency.

“Through press reporting, the committee became aware that an ICE employee allegedly used ICE’s subpoena authority on a member of the press. After further inquiries, the committee learned that contrary to the DOJ, ICE had no policy in place guiding its employees on how to properly engage the press in these matters,” he said. “Given the fundamental First Amendment issues involved, the committee thought it prudent to direct ICE to develop such a policy using the long-standing DOJ policy as a guidepost.”

The administrative subpoena to BuzzFeed News was issued by an agent with the ICE Office of Professional Responsibility, and concerned emails sent to ICE attorneys on a fast-track deportation program and plans to fine certain undocumented immigrants. It demanded that BuzzFeed News “provide all documentation including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.”

The subpoena stated that BuzzFeed News should produce the records to an ICE agent in Virginia by Dec. 22. “Failure to comply with this summons will render you liable to proceedings in a U.S. District Court to enforce compliance with this summons as well as other sanctions,” the subpoena sent to BuzzFeed News stated. “You are requested not to disclose the existence of this summons for an indefinite period of time. Any such disclosure will impede this investigation and thereby interfere with the enforcement of federal law.”