Redacted National Vetting Center Implementation Plan Raises More Concerns Than It Answers
THE TORCH: CONTENTSBy Joan Friedland
JANUARY 31, 2019
The Trump administration recently released a redacted version of its implementation plan (dated August 2018 but not released until December 2018) for a newly created National Vetting Center (NVC). The NVC project was first announced by presidential proclamation (NSPM-9) in February 2018. While it raised immediate concerns, the implementation plan and a December 11, 2018, privacy impact assessment (PIA) only confirm why this should worry immigrants and citizens.
As we’ve reported previously, the administration has been determined to implement a “continuous vetting strategy, framework and process” as a way to screen non–U.S. citizens at all stages of the immigration process, including after they become U.S. citizens. This extreme vetting strategy is part of a larger Trump agenda to criminalize, surveil, and police immigrants and communities of color. The NVC represents one element of that strategy.
The U.S. Department of Homeland Security (DHS) describes the NVC as “designed to improve the efficiency and effectiveness of U.S. Government vetting programs in order to better identify individuals who may pose a threat to national security, border security, homeland security, or public safety, consistent with law and policy.” The PIA calls the NVC a “process and technology” and describes its primary purpose as “[c]reating, maintaining, and facilitating” the vetting process. NVC’s first phase of operations will focus on vetting of individuals applying to U.S. Customs and Border Protection’s Electronic System for Travel Authorization (ESTA) in order to travel to the U.S. under the Visa Waiver Program (VWP).
According to the implementation plan and the PIA, the NVC won’t store or retain information or make decisions on whether to grant or deny an immigration application, but instead will simply make recommendations to government agencies that make the ultimate decision on whether to grant or deny an immigration benefit or target a person for immigration enforcement. But that description misstates the NVC’s impact, since the recommendation may be relied upon heavily by the agencies.
Here are some reasons we should be concerned about the NVC:
• No transparency about NVC’s plans for the future. DHS is secretive about where this program is going. While the NVC may focus for the moment on ESTA screening, its Phase Two plans are substantially redacted in the implementation plan. And even that redacted plan was released months after it was written. That makes us concerned that Phase Two — whatever it might be — will be revealed only after it is well under way, just as Phase One was. This is yet another glaring example of how DHS lacks transparency about these new programs, as shown by its under-the-radar creation of an enormous database called Homeland Advanced Recognition Technology (HART).
• No redress within the NVC. According to the PIA, the NVC will not have a redress system and doesn’t feel it owes one to the public, even though the information it collects and shares will be relied on by final decisionmakers. That means that affected individuals are left only with whatever redress procedures exist within DHS or other agencies but will not know the source of information relied upon by the NVC in making a recommendation. And since only citizens and lawful permanent residents are, in accordance with Trump administration policy, covered by Privacy Act protections, they will have no way to request that bad information be corrected.
• No standards or limits. According to the PIA, the NVC “will not use commercial sources or publicly available data as part of the vetting process” and will not “conduct electronic searches, queries, or analyses to discover or locate a predictive pattern or an anomaly.” But these self-imposed limits could easily evaporate in the future. The U.S. State Department has made collection and evaluation of information available on social media a critical part of deciding whether or not to issue visas, and DHS has made clear its intent to monitor and use individuals’ social media and Internet activity for enforcement. DHS would like to use algorithms and computational methods in analyzing and using the vast quantities of information it is able to gather, backing off of that only because of limits in software technology.
• No independent monitoring or audits. All monitoring and auditing of the NVC’s activities are internal. As a result, no independent body is authorized to examine how the NVC is really operating.
• No limits on information-sharing. The implementation plan and the PIA are either silent or at best vague about how information will be shared outside of DHS, leaving individuals subject to the wide-open information-sharing processes of the different adjudicating agencies.
Advocates should continue to monitor the NVC and its operations closely. But that will be challenging, given the program’s secrecy and reliance on internal monitoring processes. Without aggressive oversight by Congress and demands for transparency, the NVC risks becoming yet another way for DHS to keep the American public in the dark.
Joan Friedland is a NILC consultant and the primary author of our report “Untangling the Immigration Enforcement Web: Basic Information for Advocates about Databases and Information-Sharing Among Federal, State, and Local Agencies.” She formerly was a managing attorney at NILC.