Op-Ed: The Dangers of Emerging Surveillance Technology in Immigration and Beyond
By Marissa Zupancic, UNA-NCA Advocacy Fellow
Immigration reform has generated constant debate in Congress and state legislatures across the United States; policy positions range from advocating for increased security at the southern border to creating pathways to citizenship and halting all deportations. The Trump administration’s funding for a physical border wall gave rise to significant controversy in Congress as an unprecedented security measure. With the new Biden administration, advocates have high hopes for holistically improving the immigration system in the United States. On his first day in office, President Biden signed multiple immigration-focused executive orders. Among them, he implemented one order for the preservation of the Deferred Action for Childhood Arrivals or DACA program, which provides immigrants who came to the U.S. as children protection from deportation and a work permit. The other effectively halted construction of the physical border wall between the U.S. and Mexico.
An Invisible Border Wall
While on the surface the latter executive order seems promising to those who opposed the construction of a physical border wall, there is growing concern in the immigrant rights community about the creation of an “invisible” technology wall. Before his inauguration, President Biden committed to investing in technology and infrastructure, rather than a physical wall, to promote border security. The goals of “building” this virtual border wall include processing asylum seekers more efficiently and implementing new technologies to identify illegal activity, but this tech also has life-threatening consequences for migrants. Increased surveillance tech at the border can cause migrants to travel more dangerous routes to avoid detection when trying to reach the United States, resulting in more migrant deaths.
Researchers analyzed migrant deaths before and after the Secure Border Initiative, or SBInet, began in 2006. Boeing helped create SBInet by launching cameras and sensors across the southern border in Arizona to “detect intruders, evaluate the risk they posed, and dispatch law enforcement as needed.” Even though the Obama administration canceled SBInet in 2011 due to delays in deploying technologies and failure to meet any goals from a report by the Government Accountability Office (GAO), the damage was already done. During the five years SBInet was operating, more than 1,200 migrants died in Arizona when trying to cross the border and “the number of deaths per 100,000 Border Patrol apprehensions almost tripled between 2008 and 2011.” Increased mortality rates due to shifts in migration are only one of the consequences of expanding the reach of surveillance technology used by federal agencies and law enforcement. Government agencies are attempting to build another form of a virtual wall — repeating history and costing lives due to increased surveillance.
The Landscape of Surveillance & Data Overloads
Intrusive technology would not only increase surveillance at the southern border — it has already stretched farther into the United States. One Customs and Border Protection (CBP) officer shared concerns over new training which would enable the Department of Homeland Security (DHS) to deploy armed CBP officers to act as federal police, where they are able to aid local law enforcement. CBP officers acted as federal police when surveilling various Black Lives Matter protests in mid-2020 across the country, straying from CBP’s original purpose of border security and instead surveilling people exercising their constitutional rights to assemble and protest. This prompted allegations of CBP overreach and hyper-militarization, citing the action as “unconstitutional” pathways to conduct “secret, violent arrests” of immigrants.
Surveillance encompasses measures like drones providing aerial views, facial recognition technologies, and monitoring social media activity. Emerging surveillance technologies spanning from facial recognition in airports to drone surveillance by CBP showcase the systems already in place that aim to increase surveillance across the United States. Surveillance has previously helped identify individuals that pose a threat to the public, but has also led to the monitoring of everyone’s communications — not only suspects’ — causing investigators to miss critical information due to an excess of data. Historically, this has caused problems, like when the FBI collected and catalogued 100 million fingerprints by 1946 — overwhelming staff and decreasing efficiency when trying to match prints. Even now with 21st century technology, too much information collected by U.S. government agencies still presents challenges with inefficiency and data overload.
With an increasing demand for surveillance technology by the federal government, tech companies like Anduril and Palantir are working with government agencies on contracts for technology programs. Anduril is currently creating pilot programs for radar and “pattern-recognition software” for the Department of Homeland Security (DHS) that can identify when people cross the border. Palantir recently completed the Department of Health and Human Services’ (HHS) HHS Protect program which collects COVID-related data when hospitals send their data to a private contractor that then uploads the data into HHS Protect. On the surface level, this program sounds like an efficient way to aggregate necessary COVID-19 statistics, but HHS Protect has not actually helped the U.S. fight the pandemic. In November of 2020, the margins of data for inpatients with COVID-19 from HHS “differed from state data by a margin of more than 20% for 30 states,” with select Centers for Disease Control and Prevention (CDC) officials urging the end of HHS Protect entirely. Data entry delays from hospitals create a problem when DHS aggregates all of its data each day. All hospitals are not reporting daily which leaves significant gaps. A previous CDC program would take this data interpretation one step farther than HHS Protect by estimating the availability of beds three times per week and was proofread before publication. In contrast, HHS Protect’s estimates have been irregular and the data is often not double checked before being published in real-time, leading to inaccuracies.
The Right to Privacy
Invasive surveillance tech used by the government infringes upon the privacy of individuals guaranteed in the United States’ Constitution. The federal government can already gather personal information about individuals in concerning ways — for example, government agencies can purchase personal information from companies, like phone geolocation data, rather than formally obtaining a warrant. Furthermore, Immigration and Customs Enforcement (ICE) can obtain information from states’ department of motor vehicles (DMV) by circumventing proper procedure; when state governments sell their DMV data to private companies, these private companies can then sell this data to ICE.
The Fourth Amendment of the Constitution guarantees a level of privacy rights; Cristina Rodriguez, a Yale law professor, argues that the Constitution applies to all people in the U.S. — regardless of citizenship status — because the document consistently cites “person” rather than “citizen.” In the Fourth Amendment which begins, “The right of the people to be secure in their persons…,” the word citizen does not appear. However, the official White House website paraphrases the Fourth Amendment to say “citizens” rather than “persons.” The White House is an essential actor when creating and implementing policy and must advance policies that extend privacy rights to noncitizens because of the gaps in current privacy law which enable invasive data collection. At the same time, current tech companies and policies that take advantage of the shortcomings of U.S. privacy law must be held accountable.
Past and current technologies used by government agencies also represent the dangers of increased surveillance to all individuals in the U.S. Throughout history, surveillance tech has been controversial, most famously in the case of the FBI’s COINTELPRO program. This program began during the Cold War to target and diffuse “hostile foreign threats,” but quickly evolved into a way to suppress domestic political groups, like the Socialist Workers Party and the Black Panther Party (read more on the assassination of 21-year-old Fred Hampton here) until the program ended in 1971. COINTELPRO allowed the FBI to obtain information through physical searches, with a few agents going as far as illegal wiretapping, and used this information to focus on ending relationships and setting groups against each other — not to aid national security like the program’s original intentions. This program also violated First Amendment rights, including freedom of speech, when officers did not have proper warrants to open mail and recruited informants from various political organizations, like the Communist Party of the United States, to provide the FBI with information. There is plenty of room for government actors to use mass surveillance tech improperly and abusively, ignoring civil liberties and costing lives.
A more modern example of surveillance tech is the EAGLE Directed Identification Environment (EDDIE). ICE currently uses EDDIE, and this tech has recently drawn criticism for its invasive data collection and ability to store and share information quickly with other agencies. EDDIE is a handheld device used by ICE agents to obtain the fingerprints and facial scan of a person to search government databases for a match. When using EDDIE for immigration raids, ICE agents do not ask for consent when collecting biometric data. Once ICE agents take fingerprints and photographs, ICE makes the decision whether or not to arrest a person. When searching government databases, officers receive either a “Hit” or “No Hit” depending on if this person has ever had an interaction with various government agencies. Of the fingerprints and photos taken by ICE using EDDIE, only a little over half of all individuals came back as a match from FBI and DHS databases as of May 2017. This means that not all of the individuals ICE collects biometrics from have had previous run-ins with ICE. ICE is unnecessarily collecting the biometrics from individuals not targeted for arrest.
EDDIE is also used when ICE agents work with local police departments who cite the increased need for EDDIE technology in places like Chicago that offer sanctuary for undocumented immigrants. These sanctuary cities tend to limit their working relationships with government agencies like DHS, declining to give away personal information of undocumented immigrants. Intrusive technologies are already being utilized by immigration agents and in collaboration with local police in the U.S. to circumvent sanctuary city policies. Because of this, similar technology could easily fit into President Biden’s executive order calling for more technology for “border security,” stretching far beyond the actual border.
Another concerning piece of invasive surveillance tech that is becoming more widely used is facial recognition. Facial recognition tech consists of comparing an individual’s face to photos and videos or real-time applications like a person walking down the street. This tech can then identify and “find a match” in existing databases by analyzing a person’s face. Facial recognition has applications ranging from law enforcement to education, but this tech also has problematic biases. For instance, facial recognition tech performs poorly when analyzing darker complexions — with the lowest accuracy for people who are “female, Black, and 18–30 years old.” When comparing the accuracy of 189 facial recognition algorithms, all performed the worst on women of color. Clearly, facial recognition data collection presents an equity challenge as well, failing to accurately identify faces of color which have led to false identifications by law enforcement. In June 2020 in Detroit, Robert Julian-Borchak Williams, a Black man, was falsely identified by facial recognition technology and wrongly arrested. This misidentification from facial recognition algorithms has led to the wrongful arrests of two additional Black men, Michael Oliver and Nijeer Parks. In 2020, a student at Boston University was wrongly accused of being a suspect in the Sri Lanka bombings due to a false positive from facial recognition software, resulting in the student receiving death threats.
In order to address the issue of invasive technology, it is important to look at what the affected communities — mainly Black, Indigineous, People of Color (BIPOC), immigrants, and immigrant community organizers — are recommending. Because DHS and private companies are working to increase surveillance on all people in the United States regardless of citizenship status, contracts between DHS and private companies like Anduril that develop mass surveillance tech must come to an end. Additionally, DHS needs to reduce its surveillance spending and stop invasive data collection, including gathering biometrics like facial scans. The Biden administration must consider the violations of privacy inherent within these technologies.
Ultimately, the answer to border policy is not between a physical wall or surveillance tech — neither of these options provide a humane and appropriate response. The solution lies in investing in border communities and listening to the demands of impacted groups: end surveillance tech contracts between DHS and private companies, reduce DHS surveillance spending, and stop invasive data collection. Invasive technologies used by federal agents and local police provided by government contracts with private technology corporations demonstrate the growing abundance of (and demand for) surveillance technology. Due to the government’s access to personal data, like biometrics and online activity monitoring, and past abuses of intelligence measures like the FBI’s COINTELPRO program, it is important to remain wary of this data collection. To ensure the protection of the privacy rights of individuals, the Biden administration must take a stance against intrusive technology that increases overall surveillance at the federal and local levels. This tech results in privacy violations and false identifications and is a danger to all people in or migrating to the United States regardless of citizenship status.
