U.S. Immigration and Customs Enforcement has been data mining personal information from other agencies to identify and locate deportable aliens. This has resulted in 14 lawsuits that allege violations of federal privacy protections.
These lawsuits remind me of the travel ban litigation during President Trump’s first term. Trump may have to fight them all the way to the Supreme Court, but he will prevail in the end, as he did in the travel ban case.
Even so, the lawsuits will succeed in hampering the implementation of Trump’s immigration policies, which may be their main objective.
Congress has given agencies that enforce our immigration laws the authority to use personal data from other agencies. The Privacy Act of 1974 and the Immigration and Nationality Act both explicitly authorize ICE to use such data for criminal and civil immigration enforcement purposes. Data mining makes it possible for ICE to use the vast amounts of data it gets from the other agencies.
Data mining entails sifting through massive amounts of data to find patterns that can be used with predictive analytics and machine learning algorithms. Machine learning algorithms provide the instructions computers use “to learn from data, make predictions, and improve their performance over time.”
Before the occurrence of the 9/11 terrorist attacks, there was a wall between intelligence and criminal investigations that impeded information sharing. Intelligence investigations rely on sources and surveillance techniques that may become useless if they are exposed. Whereas criminal investigations are conducted to obtain evidence for prosecutions and the sources of the evidence have to be revealed.
According to the Center for Public Integrity, the FBI, CIA, and other agencies “had pieces of information before the September 11, 2001, terrorist attacks that, had they been shared, might have led to the unraveling of Al Qaeda’s plot.” This has been referred to as “connecting the dots.”
Congress tried to bring the wall down by passing the USA Patriot Act. It facilitated information sharing and cooperation among government agencies by removing “the major legal barriers that prevented the law enforcement, intelligence, and national defense communities from talking and coordinating their work to protect the American people and our national security.”
Then Congress made such information sharing mandatory with the passage of the Implementing Recommendations of the 9/11 Commission Act of 2007. It created a Director of National Intelligence to “coordinate and oversee the creation of an Interagency Threat Assessment and Coordination Group” to improve information sharing. The act also required the Department of Homeland Security to establish state, local and regional fusion centers for the gathering, analyzing and sharing of threat-related information.
But Congress also passed legislation to ensure oversight of data mining.
The Federal Agency Data Mining Reporting Act of 2007 requires DHS and the heads of the other federal departments or agencies that engage in data mining to publish an annual report on its data mining activities. The Biden administration did not comply with this requirement until the Electronic Privacy Information Center made a Freedom of Information Act request on June 30, 2023.
On Aug. 31, 2023 it published a Data Mining Report for 2020 and 2021. The report indicates that the Biden administration created a new data mining program known as the “Continuous Immigration Vetting for Operation Allies Welcome.” Six other data mining programs are discussed in the report as well.
The Trump administration has increased the government’s use of data mining. This includes reaching into federal, state and local governments in an “attempt to secure large-scale arrests and deportations of removable noncitizens, and instill a sense of fear so that others ‘self deport.’”
Recent developments include Elon Musk’s effort as the head of a newly formed Department of Government Efficiency to access millions of personal files.
The administration also awarded a new contract for $30 million to Palantir, a software company that ICE has been doing business with for more than a decade. Palantir will create a new platform for ICE — an “Immigration Lifecycle Operating System.”
The new platform is supposed to “give ICE ‘near real-time visibility’ on people self-deporting from the U.S. … It will also help the agency track and manage deportations, monitor visa overstays and target transnational criminal organizations.”
The Privacy Act prohibits government agencies from sharing personal data, with 13 exceptions in Section 552a(b). The seventh exception authorizes the release of personal records “for a civil or criminal law enforcement activity if the activity is authorized by law,” which is what ICE does with the data.
And Section 1360(b) of the INA provides that “Any information in any records kept by any department or agency of the Government as to the identity and location of aliens in the United States shall be made available to the Service upon request made by the Attorney General to the head of any such department or agency.”
A year before Trump took the oath of office, the ACLU announced its intention to prevent him from implementing his policies, saying it had “filed 434 legal actions against the Trump administration, and hundreds of other lawsuits were filed by sister organizations, state attorneys general and even private citizens.” What’s more, if Trump returned to the Oval Office, they threatened, “the first ‘resistance’ will look tame by comparison.”
Ironically, the ACLU says in the same statement that “the ballot box is where the people will get the final say.” Are the ACLU and the other litigants accepting the voters’ decision?
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
