“Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested.”
That’s the famous opening line of Franz Kafka’s “The Trial,” in which an ordinary man is thrust into a confrontation with a faceless bureaucracy. I thought of that sentence when I read about Jon. His story is not as dramatic as a novel, but it produced that feeling of dread that Kafka captures.
“Someone must have made false assumptions about Jon F., for one day, without having done anything wrong, he became the target of a government investigation.”
This was not in 1920s Czechoslovakia but in Montgomery County, late last year.
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“It was early evening, and I was sitting there watching TV but also kind of scrolling on the phone,” Jon recalled, “and I was seeing this notification that appeared to come from Google saying, ‘We’ve received a subpoena request for your Google account. You have seven days to file a motion to quash it, in which case you should let us know by clicking on a link.’ And my first thought was, this was just a scam.”
Alas, it was not. It was the first line of Jon’s own journey through a faceless bureaucracy.
But let’s back up a little first.
Who is Jon? He’s a husband and a father, recently retired from a career in insurance. He spoke to me at his home, his dog Harry at his side.
Jon was born in England, into a Jewish family that was deeply engaged in civic life. His mother joined an intelligence service at the age of 20 to fight the Nazis during World War II and later volunteered for a group called “The 35” that monitored the Soviet Union’s compliance with the Helsinki Accords. She and Jon’s sister made frequent trips to Moscow to meet with Jews living there under oppression, and Jon went once too.
He met his wife, Cheryl, an American, while on an 18-month trip to Israel. They married and lived in England for a time but moved to the U.S. permanently in 1989. He became a citizen in 1998.
Jon never considered himself as active as his mother and sister, but he keeps up with the news, he shows up for causes he believes in, and he doesn’t hesitate to share his thoughts with elected and government officials when he’s moved by current events.
So it was that one day, last fall, he sent an email to Immigration and Customs Enforcement prosecutor Joseph Dernbach.
“An article had appeared in the Washington Post about an Afghani who had helped the allied forces, had come back with American support to this country, and was now being detained with a view to deportation back to Afghanistan and feared for his life,” Jon explained.
“It just cut me to the chase. I felt like, this is unconscionable. How can you do this and say Afghanistan is a safe country to be able to go back to? It was just heartbreaking. I just felt compelled in that moment to write, so just in a few minutes, I put together a short email, which was very kind of mild, basically expressing a plea to reconsider given the consequences that could follow for this particular individual.”
“Mr. Dernbach,” he wrote, “don’t play Russian roulette with [this refugee’s] life. Err on the side of caution. There’s a reason the U.S. government along with many other governments don’t recognize the Taliban. Apply principles of common sense and decency.”
Four sentences.
About five hours later, he received the message from Google, saying his account information had been subpoenaed.
“I didn’t say anything to Cheryl at that point because I didn’t really know what it was,” Jon said, “but I was concerned about it. It was like, I don’t think this is authentic but it could possibly be, and is it possible that it’s a consequence of what I had emailed earlier? I mean, very unlikely, but is it possible? I was kind of confused.”
Confusion became alarm as he put the wording in search engines and found it might be a real subpoena. He immediately stopped using Gmail and opened a Hotmail account.
“I had no idea what was in the subpoena because they didn’t enclose it, so I started going down a wild goose chase, trying to reach DHS numbers, most of which were disconnected or didn’t respond. I called the courts in Virginia,” he said.
“Seven days to find an attorney a long way from my home was going to be very difficult but also likely to be expensive, so I felt like I just didn’t have the means to start an expensive court process.”
Jon said his biggest concern at the time was seeing the subpoena. “I called the courts in Virginia and they weren’t helpful,” he said.
“There was a reference number on the subpoena, which kind of just ran together. It was 20 different numbers and letters and didn’t look like a real reference number a court would use, so that didn’t help me. But I sent an email to Google, to request a copy of the subpoena, and eventually, they sent me the actual copy of the subpoena.”
DHS was seeking 10 different classes of information.
“A lot of it was biometric stuff, your driver’s license, but at least I felt like I’ve done something to find this thing,” he said. “At no point was I worried about anything in my social media or anything like that, but the next thing that happened was the knocking on the door.”
One morning, with no notice, three men showed up — a local police officer and two men who identified themselves as Homeland Security investigators.
“They pulled up on their phone an email and said, ‘Did you write this email?’” he said. “I said, ‘Yes, I wrote the email.’ I was staggered at that point. Like, what? Why are these people at my house?”
He was also a little frightened.
“I never had experienced anything like that before, but at the same time, I was like, I’ve got nothing to hide and I’m not going to say ‘I’m not going to talk to you.’ I didn’t want to do that,” he recalled.“And they said, ‘We’d like to hear your side of the story,’ which was puzzling to me because I didn’t realize there was a story.
“So I said to them, this was written in response to an article that appeared in the Washington Post. They said, ‘Do you have a copy of the article?’ I pulled it up on my phone and they read it — and they had no idea that there was this story that was connected to this story, so they realized there was more to it,” he continued.
“They told me they’d been sent down by headquarters. They were local in Philadelphia. The police officer said he was around for backup, whatever that meant. So they said, ‘You used the term ‘Russian roulette’ and we think that — and you used the term ‘Taliban’ — would have attracted attention,’” Jon remembered.
“But they also said, ‘We understand this is just your comment on a situation.’ They were quite polite and respectful. They weren’t overbearing or threatening. But they then asked, how did I get attorney Dernbach’s email? I said I Googled it, and then they Googled it and saw it was very easy to obtain his email address on Google.”
Jon’s information was still under subpoena and he didn’t know how it would be used. He didn’t know if he was under a continuing investigation. The whole thing felt irrational, but it might have real consequences.
So Jon reached out to the ACLU to see if it could help. In fact, the ACLU was already working on similar cases and agreed to take his case on. Attorney Steve Loney said they filed a motion in federal court to quash the subpoena and, in February, DHS withdrew it.
“I think it accomplished some of the goal in chipping away at a much, much larger problem. Any time we can push back and get the government to back off a clearly inappropriate and unconstitutional position, that’s good news and we’ve made some difference,” said Loney.
“I couldn’t say if any of this is convincing DHS to change its practices, but one hope we have is that it’s reaching and grabbing the attention of the big tech companies, who actually have no legal obligation to comply with these subpoenas without a court order. So part of our hope is that the volume around this issue is loud enough that tech companies will actually start to step up and protect the privacy rights of their subscribers.”
Google declined an interview request but sent this statement: “Our processes for handling law enforcement subpoenas are designed to protect users’ privacy while meeting our legal obligations. We review all legal demands for legal validity, and we push back against those that are overbroad or improper, as we did in this instance."
Google never did turn Jon’s information over to DHS.
DHS also declined an interview request but emailed a statement: “This subpoena was part of a criminal investigation,” it said, adding that it had broad authority to issue administrative subpoenas under Title 8, part of the Immigration and Nationality Act.
Jon’s four-sentence email made him the target of a criminal immigration investigation, something he said he never could have imagined when he became a citizen.
“I kind of feel like it’s a whole different world,” he said. “It was inconceivable to me that this was allowed to happen in basically very transparent ways without attracting a significant, powerful backlash.”
The ACLU on April 17 filed a lawsuit asking the Eastern District court to compel DHS to turn over the subpoenas it has issued to tech companies to see how widespread the practice is. The suit charges that the government uses these administrative subpoenas to stifle critics.
Jon spent four months navigating a confusing, secretive, unaccountable system. In the end, despite his vindication, he is still looking over his shoulder. He had a doorbell camera installed. He believes he was singled out on a trip to Puerto Rico, when his bags — alone among the passengers — did not arrive until the next day and contained a note that they’d been searched by TSA. He’s sure there’s a file on him somewhere.
Loney believes creating that feeling of unease is part of the motive for tactics like subpoenas and unannounced visits, but he urged government critics not to be intimidated.
“To people who disagree with what’s happening in their government right now, [don’t] allow this threat of ICE looking into your social media accounts to stop you from expressing your views because that’s what they want and that’s how an authoritarian government wins,” he said.
“First Amendment violations aren’t just about some people really putting a hand over your mouth. It’s about government activity that chills speech, and if we allow the threat of these inappropriate subpoenas to quiet us down, then they’ve achieved their goal without having to take you to court.”
Jon continues to exercise his First Amendment rights. He went to this week’s vigil outside of ICE’s Philadelphia office — something he does at least once a month — and held a sign that said “Love Thy Neighbor,” prompting honks of agreement from passing cars.
“It’s always more powerful doing things as part of a collective,” he said. “It makes you feel good and it has more impact.”
Did his experience give him any second thoughts about attending such protests?
“No. If anything, it made me more determined to show up.”
