OUR DAILY THREAD: May The Fourth Be With You

A mounting bill of wrongs

THE SET-UP: “We don’t need a warrant, bro. Stop getting that into your head.”

That’s the response Jersey City Councilman Jake G. Ephros got last Sunday when he objected to warrantless searches and seizures during ICE’s sweep in the Garden State’s second largest city. That incident, reported by NJ Advance Media, came on the heels of a recent disclosure by a pair of whistleblowers. They shared a DHS memo that opened the door to ICE agents forcibly opening doors without a judicial warrant.

Authored by acting ICE Director Todd Lyons, the memo empowers agents to forcibly enter a home without a judicial warrant and “arrest and detain” suspects if a judge has issued a “final order of removal.” Although the copy shared with The Associated Press and members of Congress is dated May 12 (2025) and addressed to “All ICE Personnel,” it wasn’t widely circulated. When it was shown to "select DHS officials,” Sen. Richard Blumenthal said it came with a caveat:

“[The Whistleblowers’] disclosure claims that the memo was rolled out in a secretive manner in which some agents were verbally briefed while others were allowed to view it but not keep a copy,” Blumenthal said. “It was reportedly clear that anyone who openly spoke out against this new directive would be fired.”

Obviously, Lyons felt it prudent to conceal the memo’s expansive interpretation of the Fourth Amendment. Perhaps he didn’t want to defend a Constitutionally questionable change to long-standing DHS policy:

Although the U.S. Department of Homeland Security (DHS) has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.

The New York Times explained the memo’s revised legal rationale:

The memo … centers on a federal law that empowers agents to make warrantless arrests of people they believe are undocumented immigrants, if they are “likely to escape” before an arrest warrant can be obtained.

ICE has long interpreted that standard to mean situations in which agents believe someone is a “flight risk,” and unlikely to comply with future immigration obligations like appearing for hearings, according to the memo. But Mr. Lyons criticized that construction as “unreasoned” and “incorrect,” changing the agency’s interpretation of it to instead mean situations in which agents believe someone is unlikely to remain at the scene.

In other words, we don’t want agents getting bogged-down in arcane, time-consuming tasks like compliance with the Fourth Amendment of the Constitution of the United States of America. If the agents “believe someone is unlikely to remain at the scene” while they get a warrant, they can just grab the battering ram and have at it. After all, they have a quota to reach.

Having seen how many of the agents conduct themselves, the notion that an undertrained agent ginned-up on Stephen Miller’s latest Goebbels impersonation need only “believe” something to nullify the Fourth Amendment on an ad hoc basis is one of the more discomfiting consequences of Trump’s second election win.

It’s even more alarming given the timing of the memo, which followed a number of reports detailing Trump’s displeasure with the slow pace of his promised mass deportations.

On March 5, The New York Times reported on the regime’s “growing frustration about the pace of arrests and deportations.” On March 11, The Atlantic noted that “at its current pace, ICE is nowhere near delivering what Trump promised.” To rectify that shortcoming, unnamed officials were “considering ways to help ICE boost its numbers, including legal tools to potentially give officers new authorities to enter homes.” And that’s were Todd Lyons comes in. He replaced the then-acting Director of ICE Caleb Vitello when Vitello was punished with a demotion for not deporting enough immigrants. As if on cue, Lyons delivered “new authorities to enter homes” on May 12 in the now widely-applied memo.

For what it’s worth, “new authorities to enter homes” is the sorta thing the US Congress is supposed to establish through the legislative process. Instead, Lyons just tweaked existing policy to find exactly the thing (a new authority to enter homes) the regime was pining for in the weeks leading up to the May 12 memo. It sure seems like Lyons “knew the ask” when he took the gig. And he delivered. What he delivered, constitutionally speaking, was explained by the wonks at Just Security:

The Fourth Amendment’s protection against unreasonable search and seizure applies to citizens and noncitizens within the United States. The Supreme Court has famously stated that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” As Supreme Court Justice Antonin Scalia wrote, “When it comes to the Fourth Amendment, the home is first among equals.” In other words, the home receives the highest protection under the Fourth Amendment. Consistent with this principle, the Supreme Court has also said that to enter a home to conduct an arrest, the government must have an arrest warrant or qualify for certain narrow exceptions to the warrant requirement (such as an emergency involving a threat to life). The DHS memo treats I-205 administrative warrants as the functional equivalent of traditional criminal arrest warrants — which permit law enforcement to enter homes to make arrests — but these two warrants are very different from a Fourth Amendment perspective.

Perhaps more than any of the eight other amendments that comprise the Bill of Rights, the protections afforded by First and the Fourth Amendments define the tangible contours of freedom in the United States. These protections are essential bulwarks against a government that seeks to impose its will on individuals. The ability to silence or to imprison unjustly are powers often used by regimes unconstrained by the rule of law or a document as powerful as the US Constitution.

Right now, we are watching those protections erode under the guise of a mass deportation that is casting a much wider net than many Americans might realize.

It certainly came as a surprise to “Jon,” a 67 year-old naturalized US citizen who asked The Washington Post to hide his full name out of fear of retribution. Last October, he’d read a WaPo story on the effort to deport an Afghan refugee identified only as “H” who’d “begged federal officials to reconsider, telling them the Taliban would kill him if he was returned to Afghanistan.”

After 27 years as a US citizen, Jon felt compelled exercise the rights that made his adopted home “a country unlike any in the world”:

“Unconscionable,” Jon thought as he found an email address online for the lead prosecutor, Joseph Dernbach, who was named in the story. Peering through metal-rimmed glasses, Jon opened Gmail on his computer monitor.

“Mr. Dernbach, don’t play Russian roulette with H’s life,” he wrote. “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.”

That was it. In five minutes, Jon said, he finished the note, signed his first and last name, pressed send and hoped his plea would make a difference.

Instead of making a difference, though, it made Jon a target:

Five hours and one minute later, Jon was watching TV with his wife when an email popped up in his inbox. He noticed it on his phone.

“Google,” the message read, “has received legal process from a Law Enforcement authority compelling the release of information related to your Google Account.”

Listed below was the type of legal process: “subpoena.” And below that, the authority: “Department of Homeland Security.”

That’s how it began. Soon would come a knock at the door by men with badges and, for Jon, the relentless feeling of being surveilled in a country where he never imagined he would be.

Jon was losing his footing on the slippery slope:

Google hadn’t provided him a copy of the subpoena, but it wasn’t the conventional sort. Homeland Security had come after him with what’s known as an administrative subpoena, a powerful legal tool that, unlike the ones people are most familiar with, federal agencies can issue without an order from a judge or grand jury.

Though the U.S. government had been accused under previous administrations of overstepping laws and guidelines that restrict the subpoenas’ use, privacy and civil rights groups say that, under President Donald Trump, Homeland Security has weaponized the tool to strangle free speech.

Administrative warrants. Administrative subpoenas. Not Judicial. Administrative.

Homeland Security is not required to share how many administrative subpoenas it issues each year, but tech experts and former agency staff estimate it’s well into the thousands, if not tens of thousands. Because the legal demands are not subject to independent review, they can take just minutes to write up and, former staff say, officials throughout the agency, even in mid-level roles, have been given the authority to approve them.

Imagine handing Trump and bevy of underlings the administrative power to pore over the lives and digital of anyone, regardless of citizenship. Sadly, you don’t have to imagine:

In March, Homeland Security issued two administrative subpoenas to Columbia University for information on a student it sought to deport after she took part in pro-Palestinian protests. In July, the agency demanded broad employment records from Harvard University with what the school’s attorneys described as “unprecedented administrative subpoenas.” In September, Homeland Security used one to try to identify Instagram users who posted about ICE raids in Los Angeles. Last month, the agency used another to demand detailed personal information about some 7,000 workers in a Minnesota health system whose staff had protested Immigration and Customs Enforcement’s intrusion into one of its hospitals.

How many of these subpoenas have been issued is an open question. Google “is not required by law to inform users of government requests,” but they do “unless it’s legally prohibited from doing so or in exceptional circumstances, such as when someone’s life is in jeopardy.” While other companies are more opaque, Google and Meta told WaPo they’ve…

…received a record number of subpoenas in the U.S. during the first half of last year, as Trump began his second term in office, according to the companies’ most recent reports. Google, which has shared subpoena data since 2012, was sent 28,622, a 15 percent increase over the previous six months.

And like Google and Meta….

…Microsoft, Amazon, Apple and Snap say that they … alert their users to administrative subpoenas unless they’re barred from doing so or in extenuating circumstances.

T-Mobile and TikTok, in contrast, say they notify users when required to by law. Verizon and AT&T wouldn’t tell The Post whether they provide any notice, and X did not reply to questions.

Another open question is how many of those subpoenas resulted in a knock on the door by Federal agents:

It was about 9:30 on the morning of Nov. 17. On his porch, [Jon] found a local officer, in uniform, with two men in slacks and sport coats.

“We’re with Homeland Security,” he recalled one of them saying.

They showed him their badges.

One of the federal agents showed him a copy of the email to Dernbach.

“We want to hear your side of the story,” he recalled one of them saying.

Jon explained the genesis of his email and remarked that the “message to Dernbach … was an opinion, protected by the First Amendment.

The investigators agreed that the email broke no law, he said, but they pointed to his mentions of Russian roulette and the Taliban. Perhaps, they conjectured, the prosecutor felt threatened.

That was absurd, given the context, Jon thought, but he didn’t say that.

After about 20 minutes, the men thanked him for his time.

But Jon had one more question.

He sometimes returned to England to visit family, and he and his wife had planned to travel over Christmas to Puerto Rico for their 40th wedding anniversary.

“I hope this doesn’t mean I’m going to get stopped at the airport,” he said. “Am I on a list now?”

Of course not, he said the men told him. He had nothing to worry about.

But when the time came for their trip, what may have been a coincidence didn’t feel coincidental:

At the airport outside San Juan, they waited at baggage claim until every other passenger had left. Their luggage, they were told, remained in Philadelphia.

“Is this a coincidence?” he asked his wife.

The bags arrived at their cruise ship later that night, and the couple opened them in the cabin.

Nothing looked out of place in his wife’s, but in Jon’s, he found a notice from the Transportation Security Administration.

“Your bag,” the standard form read, “was among those selected for physical inspection.”

It did not explain why.

Jon didn’t want to talk about what it might mean, not then. So he took a photo, closed the bag and tried to go to sleep.

Jon has since tried to move on with this life, but it’s difficult for an enthusiastic citizen who…

…watched President George H.W. Bush sign the Immigration Act of 1990, a bill that the Republican praised for recognizing “the fundamental importance and historic contributions of immigrants to our country.”

That was then and this is now … and now Jon is understandably jaded:

“There are no real safeguards anymore,” he said, “until people recognize that we’re all potential targets.”

That reality is starting to dawn on some enthusiastic supporters of the Second Amendment, but it took the public execution of a gun owner expressing his First Amendment rights to get there. - jp

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DHS AI Surveillance Arsenal Grows as Agency Defies Courts
https://www.techpolicy.press/dhs-ai-surveillance-arsenal-grows-as-agency-defies-courts/

Homeland Security is trying to force tech companies to hand over data about Trump critics
https://techcrunch.com/2026/02/03/homeland-security-is-trying-to-force-tech-companies-to-hand-over-data-about-trump-critics/

ICE demanded Maine sheriff’s employment records following his criticism of arrest
https://www.bangordailynews.com/2026/02/03/mainefocus/mainefocus-police-courts/ice-demanded-maine-sheriffs-employment-records/

Erie officer out after probe into anti-ICE social media post
https://www.axios.com/local/boulder/2026/02/03/erie-police-officer-out-anti-ice-facebook-post

How ICE Already Knows Who Minneapolis Protesters Are
https://www.nytimes.com/2026/01/30/technology/tech-ice-facial-recognition-palantir.html

ICE has expanded its mass surveillance efforts. Online activists are fighting back.
https://www.politico.com/news/2026/01/29/ice-tracking-tools-protesters-00755703

‘I am not afraid’: Disabled woman violently detained by ICE vows to keep speaking out
https://www.cnn.com/2026/02/04/politics/video/i-am-not-afriad-disabled-woman-violently-detained-by-ice-vows-to-keep-speaking-out-lcl