Immigration and Customs Enforcement is trying to give the NSA and FBI a run for their money as leading purveyors of U.S. surveillance. While ICE regularly made headlines during the Trump Administration for its involvement in the president’s at times ruthless so-called “zero-tolerance” immigration policy, a new report details the scale of the agency’s evolving digital surveillance infrastructure, an expansive and expensive apparatus more than a decade in the making.
ICE reportedly spent $2.8 billion on facial recognition capabilities and other new surveillance tech between 2008 and 2021, according to a new report from Georgetown Law’s Center on Privacy & Technology titled, “American Dragnet.” During those years, the agency reportedly swallowed up troves of large digital databases from state, local, and even private sources to create, “a surveillance infrastructure that enables it to pull detailed dossiers on nearly anyone, seemingly at any time.” The report, which pulls on hundreds of Freedom of Information Act requests compiled over two years, offers some of the clearest glimpses yet into ICE’s growth into domestic surveillance powerhouse status.
The report’s authors claim new documents show evidence of ICE building up its surveillance capabilities around five years earlier than previously thought, with ICE’s first facial recognition searches dating back to the final moments of George W. Bush’s presidency. Like its colleagues in America’s other spy-heavy three-letter agencies, the report marks a significant uptick in ICE’s data collection following the September 11 attacks. That acquisition of a vast new data set includes more traditional data like call records and utility customer information as well as more modern signifiers of the digital age like geolocation information and social media posts.
“Access to those new data sets, combined with the power of algorithmic tools for sorting, matching, searching and analysis has dramatically expanded the scope and regularity of ICE surveillance,” the report reads.
The agency’s use of facial recognition has blossomed since the Bush years. According to the report, one-third of all U.S. adults have had a driver’s photograph subjected to an ICE facial recognition scan. ICE reportedly possesses driver’s license data on around 75% of U.S. adults and can automatically detect the new address of around three out of four adults when they move homes by using utility records, the report notes. ICE isn’t slowing down on its facial recognition pursuits either. New documents revealed last week show the agency intends to spend $7.2 million on new facial recognition monitoring tools to track and monitor migrants.
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In statement sent to Gizmodo, Oregon Senator Ron Wyden expressed concerns over the data available to ICE, which he criticized as having “long histories of abusing their authority.”
“I’ve been sounding the alarm for years that shady data brokers and unscrupulous companies like Clearview are enabling the warrantless bulk surveillance of Americans,” Wyden said. “This report is another reminder of the urgent need to pass my Fourth Amendment is Not for Sale Act, which would require law-enforcement to get a warrant to obtain Americans’ personal data instead of end-running the Fourth Amendment by purchasing Americans’ private information. The government shouldn’t be able to use its credit card to get around Americans’ Constitutional rights.”
In an interview with Gizmodo, Georgetown Law Center on Privacy and Technology Research Fellow and report co-author Allison McDonald said colleagues were especially interested in focusing on ICE because of its underlooked overlap linking immigrants’ rights and digital privacy spheres.
“ICE is right at the center of these two areas,” McDonald said. “They are not really talked about much by those focused on surveillance, but they are gathering more and more data to do exactly the things that the people who are concerned about the FBI and NSA are doing already.” Despite spending over a decade growing its data collection power on the sidelines, McDonald said there’s still a “vast lack of transparency” surrounding ICE’s use of personal data.
In a statement sent to Gizmodo, an ICE spokesperson acknowledged the agency uses, “various forms of technology,” and didn’t deny the details of the report.
“Like other law enforcement agencies, U.S. Immigration and Customs Enforcement employs various forms of technology to investigate violations of the law, while appropriately respecting civil liberties and privacy interests,” the spokesperson said. “ICE focuses its civil immigration enforcement activities on individuals who pose a threat to national security, public safety, and border security.”
Much of ICE’s personal data was actually willingly relinquished by U.S. adults to state and local agencies in exchange for essential services. Only later would ICE access much of that data and often without needing a warrant, the report notes. Data collected by state institutions often finds its way onto ICE desks in ways the report’s authors claim lack meaningful transparency or oversight. Though some states like Washington have taken steps to restrict their cooperation with ICE, the report claims the agency still finds creative ways to access that data.
“In a lot of cases the lawmakers who are advocating for driver privilege cards are not aware of the connections that already exist between ICE and the DMV,” McDonald said. “If you don’t understand all of the different ways ICE is accessing the data then the restrictions are not going to be effective. What you need to focus on is the use of the data rather than specifically saying that the database can’t be used.”
On the federal level, the authors note how the Deferred Action for Childhood Arrivals (DACA) program and the IRS’ use of individual taxpayer-identification numbers can also act as digital “honeytraps” to coax undocumented immigrants into forfeiting data ICE may ultimately use against them. On its own, this torrent of data looks like messy soup, but thanks to advances in machine learning and sorting tools from companies like Peter Thiel founded Palantir, ICE possesses the ability to spot precarious gems within the data morass.
In some of the report’s more uncomfortable findings, the authors claim ICE has used facial recognition scans of undocumented immigrants’ driver’s licenses to deport people in at least six states. Around 17 states currently let undocumented immigrants apply for driver’s licenses. Though legislation aiming to provide undocumented immigrants with licenses is often carried out under more politically progressive leadership, it has the unintended consequences of supplying ICE with data, and ultimately weakening immigrant trust in U.S. institutions, McDonald said.
Only a quarter of U.S. adults in a Pew Research poll last year said they trusted the government to do what’s right, a figure which stands amongst some of the lowest levels of confidence since the firm started asking the question in the 1960s. That uneasiness and lack of trust may lead some immigrants left to feel uncomfortable providing data and unable to seek social services they or their children may desperately need.
“This has devastating consequences on communities,” McDonald said. “The reason we want driver privilege cards is that they make the roads safer, but if people can’t trust that agencies will be good custodians of their data then they are not going to get their cars. They are not going to be going to the hospital if they think their doctor is going to turn around and send their data to ICE.”
McDonald and her co-authors are calling on Congress to update the Driver’s Privacy Protection Act (DPPA) to require ICE to obtain a warrant before using DMV data for immigration purposes. The author also want to see an end to ICE’s purchase of large data sets from brokers.
The authors also propose another solution at odds with the U.S immigration policy status quo: drastically reduce ICE’s ability to carry out deportations and create a pathway to citizenship for more undocumented immigrants.
“While those reforms do not address surveillance itself, they are the most direct way to undercut ICE surveillance authority,” the authors write.
Update: 5/11, 10:00 a.m: Added statement from ICE.