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On Friday, the Wall Street Journal reported that DHS is using cell phone activity data — from American citizens as well as immigrants — for the purpose of immigration enforcement. According to the report, “The location data is drawn from ordinary cellphone apps, including those for games, weather and e-commerce, for which the user has granted permission to log the phone’s location.”
This attack on privacy and civil liberties is not new under the Trump administration. Over the last few years, the Trump administration has been actively curbing civil liberties of immigrants and naturalized citizens, collecting, storing, and using more and more personal information, sometimes in perpetuity, and sharing it with more and more government agencies. The Trump administration is also collecting more personal information from American citizens seeking to reunite with foreign national family members and citizens inadvertently detained by DHS. Even more surprising is a new Trump administration scheme to store all air, sea, and rail travel information, including that of U.S. citizens with no connection to immigration, in a large DHS database shared with various parts of the government, a database that has been reserved for foreign national travel until now.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
The familiar Trump administration rationale for these privacy and civil liberties violations is that the federal government needs this information, including from private U.S. citizens, to crack down on illegal immigration, assist in public safety, and ensure data accuracy and usability. But these are just canards. What is the cost to the constitutional civil liberties guaranteed to all Americans? And when is the violation of civil liberties simply too much of an erosion of individual liberties in order to apply extreme approaches on immigration policy? The answer is our government is crossing a red line of individual liberty and must be stopped.
In addition to the latest Wall Street Journal revelation of DHS’s collection of cellphone location and activity data, below is a brief summary of previous actions by the Trump administration that significantly impact the civil liberties of citizens and immigrants.
On September 4, 2019, the Department of Homeland Security proposed a new collection of information “to assess an alien’s eligibility to travel to or be admitted to the United States or to receive an immigration-related benefit from DHS.” As a way of vetting newcomers, DHS would collect social media user identification (i.e. usernames, identifiers, “handles”) and “associated publicly available social media platforms used by the applicant during the past five years.” This includes a variety of social media sites such as Facebook, Instagram, Twitter, Youtube, and a list of other sites that will change over time, according to DHS. The Electronic Frontier Foundation (EFF) has detailed multiple privacy concerns with this proposal, such as self-censorship — “[i]f individuals know that the government is monitoring their social media pages, they are likely to self-censor.” EFF also explains that “the proposed rule infringes upon anonymous speech,” because many individuals run anonymous social media accounts and “[n]o assurance of confidentiality is provided” in the proposal. EFF also notes how “the proposed rule threatens freedom of association,” because the collection of social media information also implicates U.S. citizens petitioning for a family member, such as a spouse, to come to the United States.
The Brennan Center for Justice recounts this era of social media monitoring that dates back to 2015 when DHS began to pilot the screening of social media accounts of individuals entering the U.S. A 2017 DHS Inspector General report criticized the pilot programs, highlighting the “lack of criteria for measuring performance to ensure they meet their objectives” in screening individuals as potential terrorist threats. Even with this critical report, however, the Trump administration has aggressively moved forward on collecting social media information.
In May 2017, the Department of State issued an emergency notice to increase screening and information collection of certain applicants, which the Brennan Center and various other civil and human rights organizations opposed, stating that the “proposal is excessively burdensome and vague, is apt to chill speech, is discriminatory against Muslims, and has no security benefit.”
Furthermore, over the last three years, there has been an effort by the State Department, DHS (including ICE & CBP) to obtain information on public social media accounts. According to the Brennan Center, this extreme vetting is working in conjunction with President Trump’s 2017 “Muslim ban” to essentially act as a “digital muslim ban.”
According to the New York Times, “[t]he Trump administration is moving to collect DNA samples from hundreds of thousands of people booked into federal immigration custody each year and to enter the results into a national criminal database,” as explained in a DHS Privacy Impact Statement (PIA) issued in January, 2020. There is also a question of whether the DNA of children will be collected, as well as those seeking asylum through official ports of entry, CNBC reports. As explained in the DHS Privacy Impact Assessment, until now those in immigration detention have been exempt from required DNA collection under the DNA Fingerprint Act of 2005 because of a 2010 DHS-DOJ agreement, as authorized by statute and regulation. The Trump administration is now seeking to amend the regulation, thereby striking down the 2010 agreement. Vera Eidelman, a staff lawyer with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, told the New York Times that “because genetic material carries family connections, the data collection would have implications not only for those in immigration custody, but also their family members who might be United States citizens or legal residents.”
Early in the Trump administration, the U.S. Census attempted to collect citizenship data by adding a citizenship question on the 2020 Census form so that states could redistrict based upon the number of citizens rather than the number of residents. The Supreme Court rejected this plan on June 27, 2019 and many have argued it was an attempt to benefit Republicans through redistricting and to deprive minorities of representation, including a Republican strategist who allegedly developed the idea of the U.S. Census citizenship question.
Instead of abandoning the citizenship effort after the Supreme Court’s ruling, President Trump issued an executive order weeks later directing the U.S. Census to collect citizenship data from existing government sources that, notwithstanding the failure of the citizenship question on the 2020 Census, would accomplish the same goal as the failed attempt to place a citizenship question on the census. In December 2019, DHS issued a Privacy Impact Assessment that describes a data-sharing agreement with the U.S. Census to implement the executive order which, according to NPR, would “help the Census Bureau produce data about the U.S. citizenship status of every person living in the country.”
According to Time magazine, “[t]he Census Bureau has promised the data will be kept for no more than two years, and will then be destroyed” and will only be used to help the bureau “create a model estimating the likelihood that each person in the U.S. is a citizen, non-citizen or an immigrant in the country without legal permission.” Despite these assurances, privacy and civil liberties concerns continue about the major new use of this data.
In another quiet effort to collect and store more U.S. citizen information, DHS issued a Privacy Impact Assessment last month explaining that, for the first time, U.S. citizen air, sea, and rail travel information would be stored in a database (Arrival and Departure Information System, ADIS) designed to identify visa overstayers, i.e. visiting foreign nationals who fail to depart upon the expiration of their authorized stay in the U.S. The proffered reasons range from overly general — improving usability and accuracy of travel records, better filtering and access control — to very specific — “Including U.S. citizen data in ADIS will allow CBP to better identify dual nationals who travel on a foreign passport and, without evidence of U.S. citizenship, may have otherwise appeared to be overstays, which may have resulted in the inaccurate creation of overstay notices.” The latter specific reason means travel of foreign-born U.S. citizens will be tracked. Moreover, even if DHS claims it has no interest in tracking other U.S. citizen travel, the inclusion of all U.S. citizen travel information into ADIS is a major new collection and storage of U.S. citizen travel information in a database used by various government officials, as described in the PIA, raising serious civil liberties concerns.