Surveillance Tools Intended for Border Control Are Being Used Against Americans

U.S. citizens are being monitored and punished with technology meant to battle illegal immigration.

Any tool or power that the government acquires to address the crisis of the moment will eventually be deployed against the general public. So it is with border enforcement and the crackdown on immigrants. Surveillance technology ostensibly intended for the enforcement of laws regulating migration is being turned against Americans.

"In the battle against illegal immigration," The Wall Street Journal's Shane Shifflett and Hannah Critchfield reported in April, "the U.S. is spending hundreds of millions of dollars on tools that give federal agents easy access to the home and workplace addresses of American citizens, their social-media accounts, vehicle information, flight history, law-enforcement records and other personal information, as well as data to track their daily comings and going." The article opened with the story of Liz McLellan, a Maine resident who photographed federal agents participating in an immigration crackdown. Agents went to her home and told her, "This is a warning. We know you live right here." Understandably, she took that as a threat.

McLellan was well within her rights to record federal agents. "Courts have protected a general right to record law enforcement when the officers are performing official actions in a public space, such as a street or park," notes Freedom Forum, a First Amendment nonprofit. "This right is protected under both freedom of speech as free expression and freedom of the press, which includes protection for gathering information about the government and for sharing it with others."

Federal officials complain that activists publish information about agents that may impede operations, but that's also a protected activity. "Government officials and employees don't enjoy special immunity from 'doxxing,'" the Foundation for Individual Rights and Expression points out. "To the contrary, the power they exercise makes it even more important that people be free to criticize them and disclose information that holds them accountable."

The feds were trying to intimidate McLellan to get her to stop her constitutionally protected monitoring of government operations. They used capabilities acquired to combat illegal immigration to identify her and go to her home. The "high-tech dragnet built to locate, track and deport people residing illegally in the U.S.," the Journal's Shifflett and Critchfield noted, "allows thousands of federal agents nationwide to peruse a trove of data belonging to more than 300 million people, including citizens."

In a report updated last year, American Dragnet: Data-Driven Deportation in the 21st Century, the Georgetown Law Center on Privacy and Technology delved into the surveillance capabilities assembled in the name of border control. As of 2022, the authors found, U.S. Immigration and Customs Enforcement (ICE) "had scanned the driver's license photos of 1 in 3 adults," "had access to the driver's license data of 3 in 4 adults," "was tracking the movements of drivers in cities home to 3 in 4 adults," and "could locate 3 in 4 adults through their utility records." ICE "built its surveillance dragnet by tapping data from private companies and state and local bureaucracies," and it "spent approximately $2.8 billion between 2008 and 2021 on new surveillance, data collection and data-sharing programs."

The report mentioned a contract between ICE and Palantir that would "provide the government with the ability to track people's movements with 'near real-time visibility.'" According to The Wall Street Journal, that contract has since expanded to provide federal agents with the Enhanced Leads Identification and Targeting for Enforcement phone app, which pulls information from a variety of government databases to plot targeted individuals on a map.

Scanning driver's license photos is especially consequential with the deployment of NEC's Mobile Fortify facial recognition app. "When ICE agents or officers encounter an individual or associates of that individual, they will use the Mobile Fortify app installed on their government-issued device to take a photograph," according to a Department of Homeland Security (DHS) memo first reported by 404 Media. The app then sends the photograph to the Traveler Verification Service overseen by Customs and Border Protection (CBP) as part of the department's Automated Targeting System. The picture is checked against the CBP's Seizure and Apprehension Workflow, which "contains the biometric gallery of individuals for whom CBP maintains derogatory information." The app also performs contactless fingerprint checks. CBP saves those photographs and fingerprints "for 15 years," the DHS adds.

The Electronic Privacy Information Center (EPIC) warns that "ICE is currently using the Mobile Fortify app in the field to identify anyone they happen to encounter and want to identify." In a November letter joined by other civil liberties groups, EPIC cautioned that Mobile Fortify pulls up vast amounts of data from photos: "By pointing their phone at an individual for face identification, ICE can query various databases and obtain data related to 'individuals, vehicles, airplanes, vessels, addresses, phone numbers and firearms.'"

In a case of predictable mission creep, federal agents are using Mobile Fortify not just on suspected undocumented migrants but also against protesters like McLellan. Scanned protesters have lost TSA PreCheck and Global Entry status for travel. In itself, that may not sound like a big deal, but it means the federal government is willing to retaliate against people for exercising constitutionally protected rights. That can extend to far more serious consequences.

Once somebody is on the government's radar, agents can target their associates. Vanderbilt Law School student Bianca Castillo reports that federal officers use a system called Penlink, which "allows agents to 'geofence' a specific area and identify all cell phones within its range, thus giving ICE the ability to track the movements and locations of these phones and their owners over time." The feds use the system without seeking warrants, claiming it is a commercial database exempt from Fourth Amendment requirements. That position, Castillo notes, seems to be "in direct violation of Carpenter v. United States, in which the US Supreme Court held that mobile phone location data revealed so much about people's lives that, under the Fourth Amendment, authorities need a warrant to access it from phone companies." 

Even committed border warriors who favor stronger enforcement of immigration rules should have qualms about the government's deployment of surveillance-state capabilities. Tools and techniques adopted for one purpose are inevitably redirected to others, as the government is doing by targeting protesters with technology originally intended for immigration control. These surveillance tools will be used by other agencies to enforce rules and laws important to future administrations.

Ultimately, there's no such thing as a single-purpose surveillance state. There's just the misuse and abuse of the government's ability to identify and monitor people who come to its attention. 

This article originally appeared online. The web version has been updated to reflect the print edition.