This is the 124th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we analyze a recent report detailing ICE’s vast surveillance infrastructure.
In Under the Radar, we discuss reports of children crossing the border alone after their families were expelled under Title 42.
The Big Picture
The news: A report released earlier this month by the Georgetown Law Center on Privacy and Security condenses and expands on the extent to which ICE as an agency has engaged in a bacchanalia of data collection and civil liberties violations outside of any parameters of oversight or reasonability.
What’s happening?
If there’s one maxim of the post-9/11 security state, it’s that in the battle between privacy and security, security has not only triumphed but stuck privacy’s head on a spike as a warning to the others. It’s become something of a tradition among not only intelligence but all federal and local law enforcement entities to develop their own mass surveillance capabilities. These databases are all interconnected via fusion centers and task forces and information-sharing agreements into webs of monitoring that are practically inscrutable, very difficult to exercise oversight of, and for which most agencies feel they owe no explanation. One might think of the Wayne Jarvis character from Arrested Development, who when questioned about the government’s apparent overreaches merely answers, deadpan, “the PATRIOT Act. Read it.”
ICE is no exception. As we’ve detailed before, the agency has for years now invested in ever-more expansive and robust technologies to monitor immigrants directly under its supervision as part of the umbrella alternatives to detention (ATD) program. These initiatives have been championed by policymakers of both parties in part because they are considered more humane than keeping people in squalid detention. While that’s true, as we’ve discussed before, their use isn’t necessarily keeping people out of detention so much as expanding the pool of people in some kind of active monitoring, putting tens of thousands in what advocates have termed e-carceration via ankle monitors, cell phone apps, and other tools.
Yet most people don’t realize that the monitoring extends far beyond the specific people under supervision. The report authors—who sent hundreds of freedom of information requests to entities in all fifty states and the District of Columbia, conducted federal and state-level legal reviews, and scoured procurement databases—ultimately establish that ICE has used facial recognition technology to scan the faces of 1 in 3 U.S. adults in state DMV databases; has license date for 3 out of 4; can use automatic license plate scanner data to track the movements of 3 of 4; and can access utility records to determine addresses for 3 out of 4 as well.
Apart from the staggering scope of this data collection and surveillance, the biggest takeaway from the report is the extent to which all happens outside any authorization structures or supervision, almost entirely warrantlessly and without even the knowledge of local and federal officials, let alone any of the people swept up. That’s not only because of the standardization of this type of surveillance across the government and in the paranoia-infused creation of the Department of Homeland Security specifically (though that’s certainly part of it) but just how multifaceted and decentralized the monitoring is.
The operation encompasses both the obvious information routes, like criminal justice data shared as part of the mandatory nationwide Secure Communities program, as well as non-criminal information like vehicle registrations and utility sign-ups, originating from a mixture of public and private sources. For example, automatic license plate scanners—a technology that, as its name suggests, reads the license plates of every passing car and logs them along with a timestamp and the geolocation, effectively tracking the comings and goings of people to whom those cars belong—are used by law enforcement and private commercial entities alike. Both sources of data are then compiled by a private company called Vigilant Solutions, which packages the databases and sells them to ICE.
This structure effectively puts the agency at various degrees of separation from the data source, obscuring their involvement and, crucially, evading some of the few legal constraints that exist on ICE accessing these types of records. So while agents would probably need a targeted warrant to obtain a single person’s utility records, for example, they need no separate authorization to buy access to a database where they can query everyone’s information, which has moved through several entities on its way to their own systems.
According to the report, that’s exactly what they’ve done, purchasing data on utilities including water, electricity, gas, and phone from the Thomson Reuters CLEAR data brokerage system, which got them through a little-known credit reporting agency called the National Consumer and Telecom Utilities Exchange, which obtained the records directly from partner utility providers. All told, these records totaled information on over 218 million consumers. ICE spent $2.8 billion on surveillance, data collection, and data-sharing programs between 2008 and 2021.
Not all the data is purchased, as much is simply volunteered by local agencies, often without the knowledge of local officials. For example, in Washington State, the DMV was permitting ICE access to driver records and allowing facial recognition searches to be run. Once Gov. Jay Inslee moved to formally prohibit the practice—after finding out about it from a report in The Seattle Times—the federal agency simply toggled to relying on the state police, who were much more amenable to cooperation. ICE always seems to find some method of accessing the data, in large part due to the very diffuse nature of the post-9/11 data-sharing environment, where state and federal agencies have overlapping agreements and joint operations that allow access.
The last type of data that the report contends with is much more limited, though arguably much more infuriating: the use of information provided by unaccompanied minors for immigration enforcement. As we’ve delved into in detail before, the care of migrant minors without legal guardians falls to the Department of Health and Human Services, which is tasked in part with finding guardians for them. Under the Trump administration, ICE was granted access to this HHS information in order to actually target the very people that the government was ostensibly attempting to place minors with. At the time, this was one of the main drivers of a ballooning population of children in custody, as many would-be sponsors grew scared of participating in the vetting process to receive the minors.
How we got here
DHS’s numerous enforcement agencies have been expanding their surveillance capabilities for a long time, and these efforts aren’t limited to a single presidential administration or political party. The Bush administration implemented Secure Communities, a program first allowing and later requiring local law enforcement agencies to share arrest records and other information with ice, in 2008. Under Obama, Secure Communities expanded significantly until it was scrapped and replaced with the slightly more limited Priority Enforcement Program in 2014.
That same year, ICE put out a request for license plate readers, which would be uploaded to a database and used to “assist in the location of absconders and criminal aliens.” The request asked that the readers enable officers to “determine where and when the vehicle has traveled” and claimed this kind of surveillance would “enhance officer safety by enabling arrests to occur away from a subject’s residence.”
ICE ended up canceling the request due to privacy concerns, but in 2015, DHS put out a subsequent request for the same thing. Officials told the Washington Post that they had figured out how to address civil liberties groups’ privacy concerns—but one advocate said the license plate readers would give DHS “warrantless access to location information going back at least five years about virtually every adult driver in the U.S.” As of 2019, more than 80 local law enforcement agencies shared information with ICE, according to records obtained by the ACLU of Northern California.
In 2017, ICE unveiled the Investigative Case Management system, the result of a $20 billion contract with Palantir awarded in 2014. ICM gave ICE agents access to databases maintained by a number of federal agencies including the DEA, the FBI, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, according to a report by The Intercept. ICM also provided access to information on people’s schools and workplaces, family relationships and personal connections, phone records, biometric traits, criminal records, and home and work addresses. The Intercept report also found that while ICM was developed for ICE’s Homeland Security Investigations branch, it was also available to agents within ICE’s Enforcement and Removal Office, which is responsible for tracking and arresting people suspected of violating immigration law.
FALCON, a separate platform also built by Palantir in 2013, was developed to track cross-border criminal activity and is also accessible to both HSI and ERO agents. FALCON gave agents access to local police reports and law enforcement databases, people’s social media accounts, cell phone information, and more. Early in his presidency, Trump issued an executive order prohibiting undocumented immigrants from accessing any information the government had collected on them under the Privacy Act; U.S. citizens and legal permanent residents were still able to do so until the administration issued a rule barring them from accessing their records as well.
As Max Rivlin-Nadler reported for The Appeal in 2017, information-sharing between local law enforcement and federal immigration agencies undermines so-called sanctuary city policies. “Gang databases” maintained by municipal police departments in New York and Los Angeles, for example, ensnare people based on flimsy criteria. In New York, people can be added to the gang database if they fulfill just two criteria, including “frequent presence at a known gang location” or “frequent wearing of gang colors.” There have been numerous reports of people being arrested by ICE after being placed on databases of suspected gang members.
ICE also uses social media information, often obtained through Thomson Reuters’s CLEAR database, to find and arrest its “targets.” Customs and Border Protection has also purchased consumer cell phone data, which allows it to track migrants as they attempt to cross the southern border, BuzzFeed News reported in 2020. More recently, as noted above, ICE obtained access to a database that contains consumers’ utility records. Through these databases, ICE can determine whether people who were previously deported from the U.S. have, say, taken out a driver’s license, opened an account with an electric company, or posted on social media from the U.S., all of which can be used to open a new deportation case against them and charge them with illegal re-entry.
To summarize, ICE has access not only to criminal and arrest records, but also to auto records, driver’s licenses and license plates, social media accounts, utility bills, geolocation data gleaned from seemingly innocuous cell phone apps, and much more. Together, these databases function as a massive dragnet, allowing ICE to track down people it may not otherwise be able to find.
What’s next?
Many of the avenues of data collection detailed in the report have been shut. The obscure credit agency that was selling utility data that was eventually ending up in the hands of ICE has ceased the practice, for example. Yet the report as a whole makes clear that limiting ICE’s ability to gather data on millions of people is fundamentally a game of whack-a-mole. Once one approach stops working, ICE will just get the information elsewhere. Given the shroud of secrecy that has thus far allowed the agency to engineer this massive surveillance structure largely unnoticed, it’s likely that we won’t even catch wind of each new data-sucking tendril until it’s compiled information on a hundred million people.
The release of this report has been decently well-covered, yet it doesn’t seem to have caused shockwaves among the general public. It hasn’t been leading cable news or dominating Congressional discourse, likely because at this stage a decent chunk of the population has probably given up on not being constantly surveilled by a contingent of law enforcement agencies and corporations. Nonetheless, its content is outrageous enough that it might compel some policymakers to act. It’s obvious that ICE itself has on interest in self-regulation, and it readily evades piecemeal approaches to regulating its surveillance capabilities, which leaves the notion of broad and all-encompassing restrictions as the most realistic option for actually stopping it from continuing the same practices.
The report lays out a series of recommendations, including simply having Congress prohibit ICE’s access to DMV data for immigration enforcement across the board, as well as ramping up its own oversight on ICE functions, a task for which it has long ostensibly been responsible but has often neglected. It also suggests that state lawmakers do more to actually ascertain what their local agencies are sharing with ICE, and move to limit it.
The broader question is one about public outrage over this. Immigration as a whole has kind of fallen off the radar of standard Democratic liberal types, while predictably becoming a wedge point for Republicans going into the midterms. That doesn’t exactly set up a situation where it will be politically easy to move in the direction of greatly restricting ICE operations, particularly as the administration keeps moving to try to terminate Title 42 (whether that actually happens this year is very much up in the air). The two things have little to do with each other, but that doesn’t matter much in the political discourse.
Under the Radar
More than 12,000 migrant children crossed the border alone after being expelled under Title 42
Since October 2020, Border Patrol has processed more than 12,000 migrant children who had previously been expelled under Title 42, according to federal data obtained by CBS News. There have been more than 1.3 million expulsions since Title 42 was first implemented in March 2020, most of which have involved adults traveling alone or families with children. Migrant children, meanwhile, have made up the fewest amount of expulsions. A federal judge prohibited the Trump administration from expelling unaccompanied children in November 2020; that ruling was later overturned, but the Biden administration decided not to expel unaccompanied children despite the ruling.
Allegedly a public health policy allowing the rapid removal of anyone crossing the border without authorization (or presenting at a port of entry to ask for asylum), Title 42 has been kept in place even as other pandemic restrictions have been lifted. Some migrants who have been expelled under the policy have spent months or even years in shelters or encampments along the border, waiting for Title 42’s end. The Biden administration recently announced it would lift Title 42 on May 23, but a federal judge temporarily prohibited it from doing so while a lawsuit against lifting Title 42 continues.
The data suggests that some migrant families expelled under Title 42 have made the difficult choice to send their children across the border alone, knowing they won’t be expelled. These separations have a few recent precedents. The Trump administration infamously separated migrant families at the border under its 2018 zero-tolerance policy. And during the time the Migrant Protection Programs—better known as Remain in Mexico—was in place, some parents chose to send their children across the border alone. The Office of Refugee Resettlement, the federal agency that oversees shelters for unaccompanied migrant children, had housed 701 children whose parents were enrolled in MPP.