In a new rule proposal, the Department of Homeland Security has moved to exempt large swaths of the Immigration and Customs Enformcement’s massive data collection system from the Privacy Act, making the type, sources, and accuracy of information ICE is collecting almost completely secret. By doing so, it would further obscure a law enforcement agency that has used its data system to label at least hundreds of immigrants as “gang members” as part of its efforts to ramp up deportations under the Trump.
The new rule focuses on ICE’s FALCON database, which, as the Intercept has reported, gathers information as far-ranging as local police reports, social media, criminal and civil asset forfeiture records, cell phone information and even data collected by the CIA and NSA. The Privacy Act had previously ensured that citizens and legal permanent residents had some access to information the government had been collecting about them, to ensure its accuracy, and to determine how the government had collected that information. Under the Bush and Obama administrations, that right was extended to undocumented immigrants as well. However, following an Executive Order by President Trump, that right was rescinded.
The new DHS rule would go even further however than the Executive Order, keeping both citizens and noncitizens alike from seeing the information that is being collected on them, or, in the case of deportations, used against them, through FALCON.
“This type of rule proposal is not unprecedented now, unfortunately,” said Jeramie Scott, the Director of the Domestic Surveillance Project at the Electronic Privacy Information Center (EPIC). “It has become a growing issue because of the amount of information that these agencies collect in their databases and the ways they disseminate this information. We’ve seen repeatedly that government databases, especially ones that have exempted themselves from Privacy Act safeguards, can contain a lot of inaccuracies.”
EPIC was one of the few organizations that commented on the proposed rule. It has filed a FOIA request with ICE to shed more light on ICE’s use of FALCON, which was designed by Palantir, a company co-founded by Trump-supporter Peter Thiel. Scott said previous rule proposals by DHS have regularly become policy, mostly unchanged from their proposals.
FALCON, which has been used by DHS since 2013 to “assist in the conduct of ICE criminal, civil, and administrative investigation,” helps flag individuals who would otherwise never be on ICE’s radar, like, for example, those who have been been put into local law enforcement gang databases (many of whom have never committed a crime).
It’s this type of information sharing that undermines many “sanctuary city” policies that are meant to help protect immigrants, immigrant advocates claim. The very same cities with “sanctuary city” policies like New York and Los Angeles, also run gang databases that ICE then uses to track people down. Police departments in these cities also engage in “broken windows” policing, where crackdowns on low-level offenses, such as turnstile jumping or drinking in public result in arrests where the arrestee’s fingerprints are shared with ICE, even if they’re not prosecuted.
“ICE has been throwing around the ‘gang affiliation’ tag left and right without any substance to them,” said Lee Wang, an attorney at the Immigrant Defense Project in New York. “What we’ve been seeing is a regular flow of information from local police departments in terms of people’s information and criminal histories to the federal government. Without a lawyer present, immigrants get ambushed by all this information the government has collected on you, and it’s very difficult to defend yourself. This is what we call the ‘‘information imbalance’ and it really matters.”
California’s gang database, for example, was found by a state auditor to be filled by errors and the police in Portland, Oregon recently annouced that it will end its gang list after a reporter with the Oregoinian found that 81 percent of those on the list were part of a racial or ethnic minority.
“We’re in a place where the government is constantly collecting data, while at the same time, we have less and less rights to see or correct that data,” said Neema Singh Guliani, a legislative counsel at the ACLU. “This should be viewed as part of the overall attempt by the Trump administration to view immigration enforcement in a way that is not respectful of the due process rights of immigrants.”
Once in ICE custody, there’s often no effective way for immigrants to challenge deportations based on the information that comes out of these databases, especially since the vast majority of immigrants are representing themselves in court.
“ICE brings these kids into custody, and says to the judge that they’re gang members, and what they can get away with, and what evidence they can put behind that claim is astonishing,” said Heidi Altman, the Director of Policy at the National Immigrant Justice Center. “I’ve seen evidence that’s a picture of a teenage boy that was posted on social media, and some immigration agent has literally drawn an arrow to another young person in the photo and scribbled in ‘gang member’.”
This “information imbalance” that immigrants experience when facing deportation is immense — often they’re not told exactly what has qualified them as a “gang member,” nor given the opportunity to correct records that local or federal law enforcement might be keeping on them. What this does, in effect, as Altman explained, is “use information to target communities simply for being where they’re from.” This has been especially prevalent in deportations of Central American immigrants, she said.
ICE did not respond to a request for comment about the rule proposal.
A similar, secretive surveillance initiative by the Department of Homeland Security, which also cast a wide net among a targeted community, was the FBI’s “No Fly List,” created in the aftermath of 9/11, and meant to restrict travel for those the government suspected of having ties to terrorism. Following a series of lawsuits alleging serious civil rights violations, the “No Fly List” was revealed to be inundated with inaccuracies.
“It’s not a transparent process, it’s ripe for abuse, the criteria are so vague, and even according to the watchlisting guide, the presumption is in favor of accepting a nomination for placement on the list,” said Naz Ahmad, a staff attorney at the Creating Law Enforcement Accountability & Responsibility (CLEAR) project at CUNY Law School. “There’s very little incentive to conduct proper reviews and see if someone should should be removed from the list, or how much of the list is based on outdated or inaccurate information.”
The buildup of the surveillance state at virtually every level of government, now operating unchecked by the very law meant to limit the amount of information the government can collect on citizens and noncitizens alike, goes far beyond the rights that were provided by the Privacy Act, EPIC’s Jeramie Scott argues.
“The growing collection of databases and the connections between them, as well as the effort to use software to data-mine and make connections between those databases will have a growing chilling effect on First Amendment rights, particularly those of association,” says Scott, pointing out that those rights for undocumented immigrants are protected under the constitution.
As ICE continues to kick its deportation machine into overdrive, and with gang policing growing increasingly prominent at the federal, state, and local level, immigrant advocates are finding that it is using these databases as pretense to criminalize entire communities. And with its data now protected from the eyes of the public it deigns to serve, there are even fewer ways to challenge it.