THE TORCH: CONTENTSBy Joan Friedland
NOVEMBER 1, 2019

In a groundbreaking decision, a U.S. district court in California recently concluded that the immigration databases U.S. Immigration and Customs Enforcement (ICE) relies on are too unreliable to form the basis for probable cause to issue “detainers” (administrative arrest warrants) against people whom ICE seeks to detain. The court reviewed multiple immigration and criminal justice databases, finding that “[t]he databases on which ICE relies for information on citizenship and immigration status often contain incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.”

Operating without accountability, these same databases play a major role not only in ICE enforcement decisions, but also in decisions made by other U.S. Department of Homeland Security (DHS) officials about immigration applications, etc. In addition, to populate its databases DHS increasingly relies on unregulated private companies that sweep up vast quantities of unvetted data. This information is used to surveil immigrants and expand the Trump administration’s deportation machine.

According to a recent New York Times Magazine article, DHS contracted with Thomson Reuters, the Canada-based multinational media company, to use its Consolidated Lead Evaluation and Reporting (CLEAR) service to target immigrants. The Times says that “CLEAR is powered by personal information: data from credit agencies, cellphone registries, social-media posts, property records, utility accounts, fishing licenses, internet chat rooms and bankruptcy filings, all fused and vetted by algorithm to form an ever-evolving, 360-degree view of U.S. residents’ lives.”

Photo by Matthew Henry on Unsplash

License plate–reader data from a company called Vigilant Solutions are also integrated into CLEAR and used for immigration enforcement. License plate readers are cameras that take pictures of passing cars indiscriminately, recording license plates and date and time of capture. Vigilant Solutions also collects data from local law enforcement agencies and private companies. ICE can query the database for current and historical information that documents a license plate’s movements over the past five years.

ICE also has a contract with Thomson Reuters “for subscription data services” that allow “continuous access to commercial database aggregators and real time jail booking databases.” An ICE notice about the contract makes clear that the system must obtain these types of data: “FBI numbers; State Identification Numbers; real time jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; pay day loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records.”

ICE also uses information technology systems and law enforcement management tools created by another for-profit company, Palantir, such as the company’s Investigative Case Management (ICM) and FALCON Search & Analysis (FALCON-SA). According to The Intercept, ICM enables ICE to obtain access to a vast “ecosystem” of data to use in deportation cases.

The vast range of unregulated information available to DHS through these private companies is troubling. Access to Individual Taxpayer Identification Number (ITIN) data is of particular concern, as federal law generally protects tax-filing information from being disclosed. ITINs, which are issued so people can file tax returns and use banking services, are available to individuals who are not eligible for a Social Security number. The inclusion of ITIN data in the information harvested by these companies raises questions about how they obtain the data.

Data brokers play a significant role in feeding information into other databases and systems. DHS has access to driver’s license databases through state criminal justice networks, a state-owned nonprofit called Nlets, and specific state networks such as, until recently, Washington State’s Driver and Plate Search (DAPS) database. But it also has access to driver’s license and vehicle information through data brokers, who can buy information from states. As reported by the New York Times Magazine, “[I]n 2017, [Washington’s Department of Licensing] earned $26,371,232 selling driver and vehicle records to 19 principal data brokers, including Experian, LexisNexis and R.L. Polk — a group of companies that had its own relationships with some 34,500 ‘subrecipient’ brokers, including TransUnion, Acxiom and Thomson Reuters” (emphasis added).

So even as states limit access to driver’s license data through their own networks, they must be mindful of the data that brokers are buying from them, which can then be used by DHS for immigration enforcement.

In an early executive order, the Trump administration reversed DHS policy that had applied Privacy Act protections to all persons whose information is in a database or system that includes U.S. citizens and noncitizens with various immigration statuses. Instead, it would protect only citizens and lawful permanent residents. In addition, DHS generally exempts its own records systems from Privacy Act protections, including those systems that rely on information from outside the agency.

The commercial databases that DHS relies on are even more unregulated and shielded from public scrutiny than DHS databases. As private entities, these companies’ practices are not necessarily subject to the Privacy Act, which “governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies,” or by the Freedom of Information Act’s disclosure requirements.

The Trump administration continuously vets and monitors immigrants via these data-gathering and surveillance systems. This practice certainly harms noncitizens and undermines their rights, but it also undermines U.S. citizens’ privacy rights, because the surveillance systems indiscriminately sweep up and store information about all of us. The government and its vendors must be held accountable for this unfettered access to our personal information.

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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.