A new investigation published earlier this month found that Immigration and Customs Enforcement, or ICE, uses a sophisticated and highly invasive dragnet surveillance system to spy on the majority of Americans, even in states with strict laws to protect the privacy of their residents.
The findings are the result of a two year investigation by the Georgetown Law Center on Privacy and Technology, and report that ICE has created a large-scale surveillance system that reaches into the lives of millions of ordinary people living in the U.S., from undocumented immigrants to U.S. citizens alike.
According to the report, ICE has driver’s license data for 3 out of 4 adults living in the U.S., and has scanned at least 1 in 3 of all adults’ driver’s licenses with controversial face recognition technology. ICE has also sidestepped privacy laws in states like California, which ban the sharing of utility information with immigration authorities, by purchasing hundreds of millions of Americans’ utility records through data brokers. In fact, ICE can locate 3 in 4 adults living in the U.S. today through their utility records.
Federal law specifically prohibits the government and its intelligence operatives (aka spies) from operating on U.S. soil under the National Security Act of 1947. And Congress passed new laws in the 1970s to protect Americans’ privacy after the discovery of political spying being carried out by the Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), National Security Agency (NSA), and the military.
The release of the Georgetown Law report comes on the heels of reports in late March of this year that ICE, a component of the Department of Homeland Security (DHS), was utilizing a variety of controversial surveillance actions against immigrants and U.S. citizens, raising concerns with lawmakers, immigration organizations, and privacy advocates.
ICE has greatly expanded the use of a GPS-enabled smartphone app called SmartLink during the pandemic as a way to track immigrants, purportedly to make sure they appear at their immigration court hearings. Nearly 200,000 immigrants have been compelled to use the app.
SmartLink is made by BI Inc., a Colorado-based subsidiary of private prison company The GEO Group. GEO runs private immigration detention facilities for ICE, and has been sued several times for relying on cheap and unpaid labor by detained immigrants, as well as for being in violation of state laws regarding minimum wages and private prisons generally.
The government claims the tracking app, which collects a substantial amount of data from the users, is a less intensive alternative to detention for immigrants. However, the app is now being forced on large numbers of immigrants with no criminal history and who have not been detained. Additionally, the vast majority of immigrants show up for their immigration hearings, raising the question of whether the app serves a purpose beyond merely spying on immigrants living in the United States.
Meanwhile, Homeland Security Investigations (HSI), an investigatory law enforcement unit within DHS, has been “operating an indiscriminate and bulk surveillance program that swept up millions of financial records about Americans,” according to Senator Ron Wyden (D-OR). HSI collected more than 6.2 million records since 2019, secretly gathering “a massive trove of ordinary Americans’ financial records” without a warrant, and then canceled the program in January 2022 when the Senator’s staff requested information. The program was a secret, unknown even to members of Congress, until February 18, 2022; DHS terminated the program within days of Senator Wyden’s request for information.
The surveillance program collected money transfers above $500 “to or from” Mexico, Arizona, California, New Mexico, and Texas. DHS had previously obtained these records from the Transaction Record Analysis Center (TRAC), a nonprofit informational clearinghouse for federal enforcement, staffing, and spending which received the information from Western Union and other financial service companies.
However, when an agreement requiring Western Union to share the data ended in 2019, HSI began subpoenaing the financial service companies, demanding that the same information be sent to TRAC. Given that TRAC is not a government agency, but a nonprofit organization run under the auspices of a state university, there are concerns not only about data privacy and security, but also the legal authority of DHS to use customs summons in this manner. The National Security Act of 1947 makes it specifically illegal for U.S. intelligence operatives to operate domestically without a search warrant from a competent federal authority or an order from a court with power to hear the case.
As the government continues to tout alternatives to detention, or ATD, advocates caution that growing numbers of immigrants placed in ATD programs does not necessarily mean decreasing numbers of immigrants being jailed, and that the creep of surveillance often doesn’t end with the border or with immigrants.