American Dragnet

Since its creation in 2003, ICE has consistently marketed itself as a law enforcement agency that targets “criminal aliens,” a term the agency has used to describe noncitizens who have had contact with law enforcement, regardless of whether they were actually convicted of an offense.36 ICE uses the language of the criminal legal system to defend deportation rhetorically, but it also relies heavily on criminal legal system infrastructure to carry out enforcement operations. Over the last two decades, the immigrant rights movement has done powerful work to reveal the ways that ICE uses police and jails to investigate people for deportation, including through the notorious mandatory fingerprint sharing scheme known as Secure Communities (S-Comm), which established a system by which fingerprint scans taken by state and local law enforcement are automatically compared against a database operated by DHS, alerting ICE to possible immigration violations.37

What has received less attention, however, is ICE’s deployment of a much broader array of data-sharing and data collection programs that amass information from sources outside of law enforcement.38 As cities and states have enacted sanctuary policies limiting law enforcement cooperation with immigration officials, ICE has progressively expanded its surveillance toolkit to include troves of data beyond what can be provided by state and local police. ICE has turned toward government agencies like DMVs, asking for driver information and requesting face recognition searches on entire license photo databases. It has ramped up investments in contracts with private data brokers, buying access to billions of pieces of data sourced from places like credit agencies and utility companies. 

This section traces the evolution of surveillance by ICE and its predecessor, INS. It illustrates the shift from programs that rely on information collected by law enforcement to programs that draw data from a far wider-ranging array of sources, including private companies and government entities with no law enforcement authority. It then tracks this expansion in terms of dollar expenditures, showing a dramatic increase in investments in the latter type of surveillance programs. As Finding 2 and Finding 3 further explain, it is the data collected outside the law enforcement context that ICE has used to weave its surveillance dragnet.

• 36. For example, the Criminal Alien Program (CAP) sends ICE officers into jails to interview detained people to determine if they may be deportable. CAP officers do not distinguish between people detained pre-trial and people who have been convicted of an offense. In fact, a significant number of people removed under CAP did not have criminal convictions. See Guillermo Cantor, Mark Noferi & Daniel E. Martinez, Enforcement Overdrive: A Comprehensive Assessment of ICE’s Criminal Alien Program, American Immigration Council 2 (Nov. 1, 2015), https://www.americanimmigrationcouncil.org/sites/default/files/research/enforcement_overdrive_a_comprehensive_assessment_of_ices_criminal_alien_program_final.pdf (“Out of more than half a million CAP removals that took place between FY 2010 and FY 2013, ICE classified the largest share (27.4 percent) as not “definite criminals”—i.e., ICE recorded no criminal conviction.”).
• 37. U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens 1-2 (2009), https://www.ice.gov/doclib/foia/secure_communities/securecommunitiesstrategicplan09.pdf (Through the deployment and use of the biometric-based identification systems, all persons booked into custody will be automatically checked for their immigration status as well as prior criminal history.)
• 38. This report distinguishes between “law enforcement,” and “non-law enforcement” data, but because of the increasing interoperability of databases and networks across all levels and branches of government, as a practical matter it may make more sense to begin thinking of all data as potentially law enforcement data.

A. The federal government built its immigration enforcement system on top of already unjust systems of policing and punishment.

For most of the 20th century, large scale deportations were ad hoc and episodic, usually driven by xenophobic reactions to particular political events. Examples include the first deportations under the Chinese Exclusion Act and the militarized border sweeps to return Mexican workers under the mid-20th century initiative that the government named “Operation Wetback,” after the racial slur.39

In 1986, however, the government began to build up a bureaucracy for systematized immigration enforcement, increasingly exploiting the same “law and order” politics that brought about the era of mass incarceration to justify the criminalization of immigrants. That year, driven by pressures created by Reagan-era mandatory minimum sentencing guidelines that overcrowded jails and prisons, Congress passed the Immigration Reform and Control Act (IRCA), which required that noncitizens convicted of certain criminal offenses be deported “as expeditiously as possible.”40 Ten years later, in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) radically expanded the number and types of offenses that could subject a person to (often mandatory) detention and deportation.41 After the passage of IIRIRA, the number of people detained and deported expanded dramatically and in tandem with the skyrocketing number of people incarcerated through the criminal legal system.42 In subsequent years, Congress continued to use the construct of criminality to expand grounds for deportation and to roll back legal protections for people in immigration custody and in immigration court.43

As the legislature was using the framework of the criminal legal system to expand the statutory basis for deportation, the agencies tasked with immigration enforcement were relying on the resources of state and local police to investigate people for deportation. In 1988, the INS launched a pair of programs, eventually consolidated into the Criminal Alien Program (CAP), which placed federal immigration enforcement officers in jails and prisons to identify and arrest people for removal. Eight years later, Congress authorized 287(g) agreements, named for their authorizing provision in the Immigration and Nationality Act to allow state and local police to enforce immigration law. While many 287(g) programs deputized police officers operating in the field, most of them trained officers to operate in jails and prisons, identifying individuals in police custody whom INS could deport.44 After its creation in 2003, ICE has continued to rely on CAP and 287(g) agreements to investigate potential targets for deportation among those who have been brought into the criminal legal system.

One consequence of building immigration enforcement systems on top of criminal enforcement systems is that Black and Brown immigrant communities, already suffering brutal and discriminatory targeting by local law enforcement, are doubly policed and, when that policing results in judicial intervention, doubly punished.

In 2008, ICE expanded its cooptation of policing infrastructure to include digital infrastructure with the launch of the Secure Communities program. The keystone of S-Comm is a fingerprint-sharing initiative that automatically sends the fingerprints of any person who is booked by federal, state or local law enforcement to the FBI and ICE.45 While several states initially resisted enrolling in S-Comm, the Obama administration stated that participation was mandatory.46 As a result, all 3,181 law enforcement jurisdictions in the country—in all 50 states, the district and five U.S. territories—were enrolled in the program.47 In 2014, after years of intense pressure from the immigrant rights movement, President Obama and DHS Secretary Jeh Johnson suspended S-Comm but replaced it with the substantially similar Priority Enforcement Program (PEP), leaving the biometric information sharing processes across the country unchanged.48 That enabled President Trump to issue an executive order immediately restarting S-Comm five days after his inauguration.49 Although President Joe Biden revoked that order in early 2021,50 the fingerprint-sharing program still remains in place today.

These data-sharing programs and cooperative agreements with law enforcement agencies became cornerstones of U.S. immigration enforcement. Just three years after the launch of S-Comm, the number of people deported under the program made up 20% of total deportations that year.51 As of 2020, about 70% of ICE arrests resulted from ICE officers being notified of a person’s impending release from jail or prison.52 The increasing levels of cooperation between immigration officials and law enforcement also coincided with an explosion in the number of deportations from the U.S. Between 1955 and 1988, the year that the INS launched CAP’s predecessor programs, the U.S. never deported more than 30,000 people in a year. After 1988, immigration enforcement never deported fewer than that number of people in a year. Following ICE’s creation in 2003, the number of people deported annually never dropped below 200,000, hitting a high of 432,448 in 201353—the year that Obama sought to pass immigration reform legislation.54

Despite how entrenched ICE’s reliance on state and local law enforcement has become, the legal authority for many of these initiatives remains unclear. No statute explicitly authorizes the fingerprint sharing program or requires state and local law enforcement to participate.55 The same is true for many other forms of information sharing, such as the inclusion of civil immigration records in the form of “Immigration Violator Files” in the FBI’s crime database.56 The surveillance strategies described in this report, which are made possible by digital technology and infrastructure developed over the last 20 years, simply were not contemplated by the legal and policy frameworks relating to immigration, much less to privacy and civil rights generally. Limiting ICE’s enforcement practices through litigation has been an uphill battle since the first legal challenges to the Chinese Exclusion Act, which established a precedent of extreme deference to the executive on matters related to immigration.57

• 39. See generally Erika Lee, At America’s Gates: Chinese Immigration During the Exclusion Era 1882-1943 (2003); Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943 to 1954, 37 Western Historical Quarterly 421, 426-443 (2006).
• 40. Patrisia Macías-Rojas, Immigration and the War on Crime: Law and Order Politics and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 6 J. on Migration and Security 1, 5 (2018) (“Overcrowded prisons and detention centers prompted legislators to introduce measures to deport ‘alien felons’ in order to free up beds … Mandatory minimum sentencing fueled overcrowding; yet Congress defined the problem as a bed space shortage … lawmakers and officials testified before Congress that they could ‘almost solve our prison overcrowding if the Federal Government does what it needs to do to get these criminals and deport them.’”); Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 701,100 Stat. 3445 (requiring the Attorney General “in the case of an alien who is convicted of an offense which makes the alien subject to deportation … [to] begin any deportation proceeding as expeditiously as possible after the date of the conviction.”); William A. Kandel, Cong. Rsch. Serv., R44627, Interior Immigration Enforcement: Criminal Alien Programs 23 (2016) (discussing how the INS executed its congressional mandate by establishing the Institutional Removal Program (IRP) and the Alien Criminal Apprehension Program (ACAP) for the targeted deportation of criminal immigrants).
• 41. In 1988, Congress created a category of offenses known as aggravated felonies; at their creation, these included only crimes like murder or firearms and drug trafficking, but the definition of aggravated felony was broadly expanded by Congress between 1990 and 1996 with passage of a series of measures, most notably including the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), to include other grounds for deportation, with retroactive application. Kandel, supra note 40 at 12; Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990); Immigration and Nationality Technical Correction Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305 (1994); Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996); Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009–546 (1996). See also Cong. Rsch. Serv., RL32480, Immigration Consequences of Criminal Activity 3-5 (2009).
• 42. See Douglas S Massey & Karen A. Pren, Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America, 38 Popul. Dev. Rev. 8 (July 30, 2021) (“Prior to the mid-1990s the annual number of deportations had not exceeded 50,000 for decades, but with the passage of the 1996 legislation this threshold was breached and by the turn of the century deportations were running at just under 200,000 annually.”).
• 43. See Walter Ewing, Daniel E. Martinez, Ruben G. Rumbaut, The Criminalization of Immigration in the United States, American Immigration Council 10–19 (July 13, 2015), https://www.americanimmigrationcouncil.org/research/criminalization-immigration-united-states.
• 44. See Marc R. Rosenblum & William A. Kandel, Cong. Rsch. Serv., R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens 11-17 (2012); id. at 16 (“More than half (32 of 57) of the §287(g) agreements identified in December 2012 are jail enforcement agreements.”); The 287(g) Program: An Overview, American Immigration Council (July 8, 2012), https://www.americanimmigrationcouncil.org/research/287g-program-immigration (“As of June 2020, there were 76 active jail enforcement model MOAs in 21 states and 65 warrant service officer model MOAs in nine states.”).
• 45. U.S. Immigration and Customs Enforcement, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens 1-2 (2009), https://www.ice.gov/doclib/foia/secure_communities/securecommunitiesstrategicplan09.pdf  (Through the deployment and use of the biometric-based identification systems, all persons booked into custody will be automatically checked for their immigration status as well as prior criminal history.).
• 46. Julia Preston, States Resisting Program Central to Obama’s Immigration Strategy, New York Times (May 5, 2011), https://www.nytimes.com/2011/05/06/us/06immigration.html (“The states’ objections are setting up a confrontation with the Department of Homeland Security, whose secretary, Janet Napolitano, has said that Secure Communities is mandatory and will be extended to all jurisdictions in the country by 2013.”).
• 47. U.S. Immigration and Customs Enforcement, Secure Communities (Feb. 9, 2021), https://www.ice.gov/secure-communities (“ICE completed full implementation of Secure Communities to all 3,181 jurisdictions within 50 states, the District of Columbia, and five U.S. Territories on January 22, 2013.”).
• 48. See Letter from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement et al. 2–3 (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf (“Accordingly, I am directing U.S. Immigration and Customs Enforcement (ICE) to discontinue Secure Communities. ICE should put in its place a program that will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies to the Federal Bureau of Investigation for criminal background checks. … This new program should be referred to as the ‘Priority Enforcement Program’ or ‘PEP.’”).
• 49. Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017).
• 50. Exec. Order No. 13,993, 86 Fed. Reg. 7051 (Jan. 25, 2021).
• 51. In fiscal year 2011, the number of removals under S-Comm was 79,726. TRAC, Removals under the Secure Communities Program (2019), https://trac.syr.edu/phptools/immigration/secure/. In total, ICE ERO removed 396,906 individuals during fiscal year 2011. U.S. Immigration and Customs Enforcement, FY 2011: ICE announces year-end removal numbers, highlights focus on key priorities (Oct. 17, 2011),
  https://www.ice.gov/news/releases/fy-2011-ice-announces-year-end-removal-numbers-highlights-focus-key-priorities#:~:text=Overall%2C%20in%20FY%202011%20ICE's,of%20criminals%20since%20FY%202008.
• 52. Hillel R. Smith, Cong. Rsch. Serv., LSB10375, Immigration Detainers: Background and Recent Legal Developments 1 (2020).
• 53. These figures may also reflect the fact that removal statistics began including border deportations. See Bethania Palma & David Mikkelson, Were More People Deported Under the Obama Administration Than Any Other?, Snopes (Oct. 20, 2016) https://www.snopes.com/fact-check/obama-deported-more-people/.
• 54. Table 39. Aliens Removed or Returned: Fiscal Years 1892 to 2017, Department of Homeland Security (Apr. 9, 2019), https://www.dhs.gov/immigration-statistics/yearbook/2017/table39.
• 55. See Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1130-31 (2013).
• 56. See National Immigration Law Center, Nlets: Questions and Answers 13 (Nov. 2020), https://www.nilc.org/wp-content/uploads/2020/11/Nlets-Q-and-A.pdf (“The NCIC is an FBI database containing, according to the FBI, ‘an electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year.’ Despite the FBI’s designation of NCIC as a criminal database, it also includes civil immigration records, such as records of prior removal/deportation orders.”).
• 57. In Chae Chan Ping v. United States, the Supreme Court established deference to the executive and the legislative branches on matters of immigration enforcement, forming the basis of the plenary power doctrine. See generally Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The "Plenary Power" Justification for Ongoing Abuses of Human Rights, 10 Asian Am. L. J. (2003).

B. After 9/11, ICE aggressively expanded its data sources beyond police and corrections agencies.

While ICE’s initiatives to draw information from state and local police were rolled out with great publicity, its efforts to reach data streams from sources outside of law enforcement have been extremely secretive. ICE began broadening the scope of its data collection in response to the events of Sept. 11, 2001, as part of an overarching federal initiative to radically increase domestic surveillance under the auspices of the “war on terror.” Before 9/11, immigration authorities rarely investigated cases outside of the criminal context. The INS did not have personnel dedicated to finding and deporting people who had overstayed their visas or individuals with outstanding final removal orders (referred to as “abscondees”).58 The INS was explicit that enforcing those types of cases was not a priority.59 The agency seldom pursued people with removal orders, and its investigators did not work abscondee cases as a matter of policy.60

One of the main reasons the INS generally did not pursue visa overstays or people with outstanding removal orders was that it struggled to find them. As the agency noted, abscondees were mostly living within the community, not incarcerated in jail or prison.61 When the Department of Justice (DOJ) Inspector General audited the INS’s Detention & Deportation program, it found that the lack of address information was one of the most frequently cited reasons for the failure to issue a surrender notice informing people of their deportation date.62 Although since the 1940s federal law had required permanent residents and visa holders to register their addresses with the government and notify federal officials of address changes,63 those requirements were rarely enforced and few people complied with them, which meant that federal address registries were largely unhelpful for INS investigations.64 

The INS considered new ways to accumulate more information to target these cases but did not ultimately follow through on implementing them. For instance, some INS officials suggested that the agency go to DMVs and data brokers for address data:

If there is no known last home or work address for the alien, searches are frequently not practical … The District Director in Miami, along with D&D managers elsewhere, noted that access to nationwide motor vehicle and credit bureau data bases [sic], as well as access to Social Security data, would help locate aliens.65

Those recommendations were not adopted.

Everything changed after 9/11. When it was discovered that two of the 15 9/11 hijackers had overstayed a visa, government officials used that fact to reshape the discourse on American immigration enforcement. “For terrorists, travel documents are as important as weapons,” the 9/11 Commission wrote, concluding that “more effective use of information available in U.S. govern­ment databases could have identified up to 3 hijackers.”66

Suddenly, tracking visa overstays and people with outstanding removal orders became a top priority, with a clear focus on targeting Muslim and Arab people.67 In January 2002, Deputy Attorney General Larry Thompson launched the Absconder Apprehension Initiative, establishing 40 immigration agent positions across seven cities to “locate, apprehend, interview, and deport” people in the broader community.68 According to the program’s guidelines, immigration agents were to prioritize targeting people who came from “countries in which there has been Al Qaeda terrorist presence or activity.”69

Within one year, however, it was clear that the program faced the same constraints that hampered similar initiatives in the past: a lack of reliable data. At the start, the INS had set out to deport all 314,000 noncitizens with final orders of removal in the U.S.,70 but after six months, the Absconder Apprehension Initiative teams were only able to apprehend 712 people.71 The GOA conducted an analysis showing that AAI’s immigration enforcement efforts had been frustrated by unreliable address records in government databases and again recommended that the government adopt other methods of obtaining that information, such as purchasing it from data brokers.72

Ultimately, the INS would pass on the task of investigating visa overstays and people with outstanding final removal orders to its successor. ICE inherited the teams that the INS created in February 2002 to locate immigrants with outstanding final removal orders, organized under the National Fugitive Operations Program.73 ICE also promptly created two new offices, the Fugitive Case Management Unit and the Fugitive Operations Support Center, to send the teams information and leads on people who could be deported.74 In June 2003, ICE also established the first unit to identify and remove visa overstays: the Compliance Enforcement Unit, which was rebranded as the Counterterrorism and Criminal Exploitation Unit in 2010.75

ICE began systematically securing new troves of data that it could use to pull people into detention and deportation. Unlike the data fueling prior initiatives, this new data came overwhelmingly from sources outside of law enforcement, including agencies and offices within federal, state and local governments, as well as from the private sector. As ICE sought to remedy the data shortages that hindered previous efforts to pursue cases, it amassed records far beyond what was provided by state and local police, allowing the agency to track a significantly larger number of people. With these efforts, the reach of ICE surveillance far exceeded that of the already massive databases maintained on arrestees and visa holders, usurping data sets that easily included the majority of people in the U.S.

• 58. See U.S. Department of Homeland Security, Office of the Inspector General, OIG-07-34, An Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations Teams 3 (2007) (“The Office of Detention and Removal Operations deportation officers have always apprehended fugitive aliens on an ad hoc basis, but teams were not exclusively devoted to this task.”). Two efforts to change this in the late 1990s did not succeed. Id. (“The plan called for the creation of “abscondee removal teams,” and the 1996 Appropriation Bill provided funding for these new positions ... the positions were absorbed into day-to-day INS detention and deportation operations … [another] initiative called for the creation of Fugitive Operations Teams … but no teams were ever established.”); U.S. Department of Homeland Security, Office of the Inspector General, OIG-05-50, Review of the Immigration and Customs Enforcement Compliance and Enforcement Unit 6 (Sept. 2005) (“In an effort to reduce the number of illegal aliens residing in the United States who had violated the terms of certain types of visas, ICE established the [Compliance Enforcement Unit (CEU)] in June 2003”); Visa Overstays: Can They Be Eliminated?: Hearing Before the House Committee on Homeland Security, 111th Cong. 11 (2010) (statement of John T. Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement, Department of Homeland Security) (CEU was “the first national program dedicated to the enforcement of nonimmigrant visa violators.”).
• 59. Memorandum from Michael R. Bromwich, Inspector General, Department of Justice, to Doris Meissner, Commissioner, Immigration and Naturalization Service (Sep. 4, 1997), https://oig.justice.gov/sites/default/files/legacy/reports/INS/e9708/i9708p1.htm (“Historically, the overstay issue has not been a primary consideration in the formulation and execution of immigration policy.”).
• 60. U.S. Department of Justice, Office of the Inspector General, Rep. No. I-96-03, Immigration And Naturalization Service Deportation of Aliens After Final Orders Have Been Issued 13 (Mar. 1996), https://oig.justice.gov/reports/INS/e9603/index.htm (“Nondetained aliens who do not comply with a surrender request are rarely pursued actively… [I]t has been national policy for [INS] Investigations not to work abscondee cases, unless an abscondee comes to their attention as part of a broader investigation.”). This did not seem to trouble immigration officials at the time. In 1994, when INS commissioner Doris Meissner was interviewed on the subject by the Times, she would say that “[w]e are not successful where removal is concerned, by and large.” Deborah Sontag, Porous Deportation System Gives Criminals Little to Fear, New York Times (Sept. 13, 1994), https://www.nytimes.com/1994/09/13/us/porous-deportation-system-gives-criminals-little-to-fear.html.
• 61. U.S. Department of Justice, Office of the Inspector General, Rep. No. I-2003-004, The Immigration and Naturalization Service’s Removal of Aliens Issued Final Orders iv n.7 (Feb. 2003), https://oig.justice.gov/reports/INS/e0304/final.pdf (“The INS defines absconders as aliens with unexecuted final orders of removal and whose whereabouts are unknown. Most absconders are nondetained aliens.”).
• 62. U.S. Department of Justice, Office of the Inspector General, Rep. No. I-96-03, supra note 60.
• 63. Alien Registration Act, Pub. L. No. 76-670,54 Stat. 670 (1940). See U.S. Gov’t Accountability Office, GAO-03-188, Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable Address Information (summarizing changes in the law from 1940-2002, all of which maintained some form of requirement to update address). Requirements to update addresses are still current today. U.S. Citizenship and Immigration Services, Change of Address, https://egov.uscis.gov/coa/displayCOAForm.do (“Except for those exempted, all aliens in the U.S. are required to report any change of address or new address.”).
• 64. See U.S. Gov’t Accountability Office, GAO-03-188, supra note 63, at 12-13 (poor compliance and enforcement with address reporting requirements); Memorandum from Michael R. Bromwich to Doris Meissner, supra note 59, at 1 (“However, [Non-Immigrant Information System] data is inadequate to enable INS to identify, locate, and arrest individual overstays.”).
• 65. U.S. Department of Justice, Office of the Inspector General, Rep. No. I-96-03, supra note 60, at 13.
• 66. National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report 384 (2004).
• 67. Kevin Lapp, Pressing Public Necessity: The Unconstitutionality of the Absconder Apprehension Initiative, 29 N.Y.U. Rev. L. & Soc. Change 573, 574–75 (2005)
  (“The result was an egregious, government directed roundup consisting overwhelmingly of Muslim and Arab individuals.”).
  
• 68. Memorandum from Larry Dean Thompson, Deputy Attorney General, Department of Justice, to Commissioner, Immigration and Naturalization Service et al. (Jan. 25, 2002), https://www.shusterman.com/pdf/absconderapprehensioninitiative.pdf; U.S. Department of Homeland Security, Office of the Inspector General, OIG-07-34, supra note 58, at 1.
• 69. Kevin Lapp, supra note 67, at 583–85.
• 70. Memorandum from Larry Dean Thompson, supra note 68.
• 71. U.S. Gov’t Accountability Office, GAO-03-188, supra note 63, at 13 (“Of the estimated 314,000 aliens with final orders of removal still at large in the United States, INS identified 5,046 who were from countries in which there has been an Al Qaeda terrorist presence or activity. To locate and apprehend these aliens, INS, in cooperation with the FBI, the Foreign Terrorist Tracking Task Force, and U.S. Attorneys, used INS address data and supplemented these data with address information from public source databases. According to a senior INS official, as of June 24, 2002, 4,334, or 86 percent, of the 5,046 alien absconders had not been apprehended, while 712, or 14 percent, had been apprehended.”).
• 72. Id. at 12–16 (The AAI example “illustrate[s] one inherent limitation of an address reporting requirement that relies on self reporting, as the reliability and completeness of the address information is dependent on the extent to which aliens comply with the reporting requirement. ... Lack of publicity, no enforcement of penalties for not filing change of address notifications, and inadequate processing procedures and controls explain in part why INS’s alien address information is unreliable.”); id. at 25 (recommending “purchasing address information from commercially available sources”).
• 73. U.S. Department of Homeland Security, Office of the Inspector General, OIG-07-34, An Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations Teams 3–4 (2007).
• 74. Id. at 41–42.
• 75. U.S. Department of Homeland Security, Office of the Inspector General, OIG-05-50, Review of the Immigration and Customs Enforcement’s Compliance Enforcement Unit 6 (Sept. 2005); Industry Day, National Security Investigations Division, Department of Homeland Security 9 (Oct. 31, 2017), https://www.brennancenter.org/sites/default/files/Industry%20Day%20Presentation_0.pdf (referencing CEU’s rebranding as CTCEU).

C. ICE contracts reveal a huge expansion in surveillance capacity.

Over the past decade, ICE has invested heavily in programs to track large swaths of the general population. Our review of over 100,000 ICE spending transactions from 2008 to 2021 reveals that the agency’s annual spending on surveillance programs grew more than fivefold during this period, skyrocketing from about $71 million to about $388 million per year.76 To analyze ICE’s surveillance spending throughout this period in more detail, we categorized each of the agency’s contract transactions by the primary surveillance service that it provided. Those categories are defined in Sidebar 1. The full list of surveillance contracts we identified and our calculations of ICE spending are included in the Appendix.

• 76. This number does not include the cost of programs paid for by other agencies and used by ICE.

Our categorization of ICE transactions offers insight into the magnitude of the agency’s spending on surveillance programs as well as the scope of the information that those programs provide. For example:

• In total, ICE spent a little over $1.3 billion on geolocation providers from 2008 to 2021. The broadest and most controversial of those contracts is one that allows ICE to access a license plate scanning database provided by Vigilant Solutions. The database contains high-speed photos of license plates from passing vehicles, along with the date, time and GPS coordinates of where the image was captured.78 Vigilant’s database consists of two types of license plate scans: those collected by private businesses—known as commercial license plate data—and those collected by law enforcement agencies.79 According to documents obtained by the ACLU of Northern California, Vigilant’s collection of commercial license plate scans are collected in places like toll roads, parking lots and garages, as well as by private vehicle repossession agents across 47 states,80 covering metropolitan areas encompassing approximately 54% of the U.S. population.81 Using that database, ICE can automatically compare new plate scans against a hot list of vehicles it is looking for.82 In 2014, Obama DHS Secretary Jeh Johnson had cited privacy concerns to drop plans for ICE agency-wide access to the database, but Trump DHS officials penned an agency-wide contract for access to the Vigilant data at the end of 2017.83

• 78. Mobilcomm, Vigilant Solutions (last visited Jan. 13, 2022), https://www.mobilcomm.com/vigilant-solutions/.
• 79. See Letter from U.S. Immigration and Customs Enforcement to Vasudha Talla 75 (Jul. 13, 2017), https://www.documentcloud.org/documents/5767094-ALPR-documents-from-ICE-FOIA.html.
• 80. Id.
• 81. Id. at 76-77; U.S. Census Bureau, Annual Estimates of the Resident Population for Metropolitan Statistical Areas in the United States and Puerto Rico: April 1, 2010 to July 1, 2019, https://docs.google.com/spreadsheets/d/1pTapQX0Cy4UEK0iFxVOjTxqLmf0J2r2A/.  
  See also Vasudha Talla, Documents Reveal ICE Using Driver Location Data from Local Police Departments, ACLU NorCal (March 13, 2019), https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/documents-reveal-ice-using-driver-location-data.
• 82. See Letter from U.S. Immigration and Customs Enforcement to Vasudha Talla 83 (Jul. 13, 2017), https://www.documentcloud.org/documents/5767094-ALPR-documents-from-ICE-FOIA.html.
• 83. Russell Brandom, Exclusive: ICE is about to start tracking license plates across the US, Verge (Jan. 26, 2018), https://www.theverge.com/2018/1/26/16932350/ice-immigration-customs-license-plate-recognition-contract-vigilant-solutions.

ICE spent roughly $96 million on biometrics in this period. One of the first ICE biometrics contracts, dated July 18, 2008, awarded $3,000 for a five-year contract for “services with the State of Rhode Island RMV services to access the face recognition database to recognize criminal aliens”84—placing the first known ICE DMV searches in the waning days of the Bush administration, roughly five years earlier than previously known. One of the most recent biometrics contracts, from September 2020, secured $224,000 for ICE’s Dallas mission support office to use face recognition software from Clearview AI, a company known to have trained their algorithms on images scraped from public websites and social media pages without their subjects’ knowledge.85 

ICE spent roughly $97 million on data brokers in this period. The primary contractor that has provided this service is Thomson Reuters, which offers a person-search database called CLEAR. The version of CLEAR built for law enforcement includes data from a massive range of different sources, including driver’s licenses and vehicle registrations; credit headers, which contain the names, addresses, phone numbers and other personal information at the top of credit reports, collected in real-time from all three major credit reporting agencies; and, as discussed in Finding 3, address records from over 80 national and regional telephone, cable, gas, electricity and water companies across the country.86 ICE’s contract for the CLEAR database began in 2017 and was allowed to lapse in February 2021.87 The agency appeared to replace this service with a new contract with LexisNexis Special Services, which offers a similar database.88

• 84. USAspending, Contract Summary: L-1 IDENTITY SOLUTIONS, INC., https://www.usaspending.gov/award/CONT_AWD_HSCECR08P00090_7012_-NONE-_-NONE-/
• 85. USAspending, Contract Summary: CLEARVIEW AI, INC., https://www.usaspending.gov/award/CONT_AWD_70CMSD20P00000130_7012_-NONE-_-NONE-; Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, New York Times (Jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.
• 86. Thomson Reuters, THE SMARTER WAY TO GET YOUR INVESTIGATIVE FACTS STRAIGHT, https://www.thomsonreuters.com/content/dam/openweb/documents/pdf/legal/fact-sheet/clear-brochure.pdf (Retrieved Nov. 26, 2021); Thomson Reuters, CLEAR for know your vendor, https://legal.thomsonreuters.com/en/products/clear-investigation-software/know-your-vendor (last visited Nov. 26, 2021).
• 87. USAspending, Contract Summary: WEST PUBLISHING CORPORATION, https://www.usaspending.gov/award/CONT_AWD_HSCEMD17F00008_7012_GS02F026DA_4732.
• 88. Sam Biddle, LexisNexis to Provide Giant Database of Personal Information to ICE, Intercept (Apr. 2, 2021), https://theintercept.com/2021/04/02/ice-database-surveillance-lexisnexis.

• ICE spent roughly $252 million on access to government databases in this period. The key database in this category is Nlets, the International Public Safety and Justice Network (formerly known as the National Law Enforcement Telecommunications System). As discussed in Finding 2, Nlets is a network operated by a nonprofit organization that allows ICE agents across the country to warrantlessly search 34 states’ DMV databases for immigration enforcement purposes, including the databases of five of the 16 states that offer undocumented people the ability to apply for drivers’ licenses.89 Under Trump, ICE expanded many of its surveillance investments; in few other areas was this expansion more pronounced than in ICE’s access to government databases.
• ICE spent roughly $389 million on telecom interception in this period.90 The key vendors expanding ICE’s wiretapping capabilities are JSI Telecom and Penlink, which sell interception equipment.91 ICE uses Penlink equipment to track a person’s phone calls or internet use in real time and collect a person’s email and social media activity for later searches.92 Although authorized on a case-by-case basis, each wiretap benefits from ICE’s information stockpiles. ICE shares records obtained from wiretaps in its case management system using Penlink’s custom-built software, allowing the agency to map connections between people.93 ICE intercepts communications on such a scale that the agency needs half a dozen contractors to make sense of it all – wiretap translation services and storage contracts make up over half of ICE’s telecom intercept spending.
• ICE spent roughly $569 million on data analysis in this period. That amount includes spending on ICE’s third biggest contractor by dollar amount – Palantir Technologies. From 2008 to 2021, ICE awarded a total of $186.6 million to Palantir alone. Palantir’s custom-built programs link together databases from a vast array of government and private sources, allowing ICE agents to access and visualize an interconnected web of data pulled from nearly every part of an individual’s life. ICE has access to so much data, from so many sources, that its third-largest contractor is not a data provider but rather a company that helps ICE make sense of that data. 

In addition to co-opting information from the state government and private sector, ICE also reached into federal sources. Soon after its founding, ICE’s Fugitive Operations Support Center began accessing information on Americans held in federal databases at the Department of State, the Department of Labor, and the Department of Housing and Urban Development, using that information to find people to detain and deport.94 

As Finding 4 discusses, the agency even used interview data from unaccompanied children at the border to investigate people for deportation. Beginning in a trial in 2017 and then under a formal 2018 policy, ICE used the information given by unaccompanied minors as well as any guardians who stepped forward to take them under their care to find and arrest those guardians. ICE engaged in that practice under a Memorandum of Understanding with the Department of Health & Human Services Office of Refugee Resettlement, an agency charged by federal law with protecting the welfare of children who arrive unaccompanied at the border.95

• 89. A total of 16 states and the District of Columbia have enacted laws allowing unauthorized immigrants to obtain driver’s licenses: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Utah, Vermont, Virginia and Washington. National Conference of State Legislatures, States Offering Driver’s Licenses to Immigrants (Aug. 9, 2021), https://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx. Out of these 17 jurisdictions, 5 of them enable ICE to electronically query driver’s license information for immigration enforcement purposes: Colorado, Delaware, New Mexico, Utah and Washington. See infra Finding 2.
• 90. Although ICE wiretaps fall under Title III of the Wiretap Act, which requires a warrant to intercept “wire, oral, or electronic communications,” the list of predicate crimes make it easier for ICE to obtain this information. See, e.g., Jennifer S. Granick et al., Mission Creep and Wiretap Act 'Super Warrants': A Cautionary Tale, 52 Loy. L.A. L. Rev. 431 (2019); ICE is Paying Millions to Surveillance Company to Spy on People’s Communications, Privacy International (May 24, 2019), https://privacyinternational.org/news-analysis/2995/ice-paying-millions-surveillance-company-spy-peoples-communications.
• 91. Privacy International, supra note 90; Chantal da Silva, ICE Just Launched a $2.4m Contract with a Secretive Data Surveillance Company that Tracks You in Real Time, Newsweek (June 7, 2018), https://www.newsweek.com/ice-just-signed-24m-contract-secretive-data-surveillance-company-can-track-you-962493.
• 92. Sole Source Justification Request, Williamson County Purchasing Department (May. 11, 2021), https://agenda.wilco.org/docs/2020/COM/20200721_1545/24566_Sole_Source_Justification__Agenda.pdf; PLX Free Trial, PENLiNK, http://go.penlink.com/plxtrial (last visited Nov. 27, 2021); Chantal Da Silva, ICE Just Launched a $2.4m Contract With a Secretive Data Surveillance Company That Tracks You in Real Time, Newsweek (June 7, 2018), https://www.newsweek.com/ice-just-signed-24m-contract-secretive-data-surveillance-company-can-track-you-962493.
• 93. See U.S. Department of Homeland Security, DHS/ICE/PIA-045, Privacy Impact Assessment for ICE Investigative Case Management 7 (Jun. 16, 2016), https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-icm-june2016.pdf (“TLS contains telecommunications information initially input into ICE’s Pen-Link software, which serves as a field-level investigative tool enabling HSI to perform local analysis within a single case or across multiple cases. Pen-Link contains a custom module built for ICE that standardizes the telecommunications records from the myriad formats used by service providers and is used to export and import data files in a specific format that is used by TLS. TLS links related data by using key identifiers for this telecommunications information, such as phone numbers. This linkage enables HSI agents to discern relationships that may help to identify the parties of criminal networks under investigation, promoting further investigation and contributing to the eventual disruption or dismantling of the criminal organizations.”).
• 94. See OIG-07-34, An Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations Teams (Mar. 2007), https://www.oig.dhs.gov/sites/default/files/assets/Mgmt/OIG_07-34_Mar07.pdf at 25, 27 (FOSC “will assist the Office of Detention and Removal Operations process data received through negotiated information-sharing agreements in several ways.”). Id. ("Under those agreements, ICE provides data on fugitive aliens from the Deportable Alien Control System to those agencies. The agencies then reconcile the data provided with information in their respective databases and any matches found are shared with ICE.").
• 95. Memorandum of Agreement among the Office of Refugee Resettlement of the U.S. Department of Health and Human Services and U.S. Immigration Enforcement and U.S. Customs and Border Protection of the U.S. Department of Homeland Security Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters (Apr. 13, 2018),
  https://www.texasmonthly.com/wp-content/uploads/2018/06/Read-the-Memo-of-Agreement.pdf; See 8 U.S.C § 1232(c)(2)(A) (2012) (“Subject to section 279(b)(2) of title 6, an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child.”).

D. By pulling in data from every source available to it, ICE’s surveillance programs have cast a dragnet over the whole U.S. population.

The massive scale of ICE’s surveillance programs have turned the agency into a key component in what Anil Kalhan, professor at Drexel Kline School of Law, has called “the immigration surveillance state.”96 According to Kalhan, ICE surveillance has “transformed a regime of immigration control, operating primarily on noncitizens at the border, into part of a more expansive regime of migration and mobility surveillance, operating without geographic bounds upon citizens and noncitizens alike.”97 University of California Irvine professor Ana Muñiz recognized a similar shift within a specific immigration enforcement system, the Enforcement Integrated Database. She argues that increased data collection and data-sharing arrangements transformed the database from “a case management system to a mass surveillance system.”98

While Congress has authorized ICE to exercise certain limited investigative powers,99 Congress has never explicitly authorized the massive scale of its surveillance programs. Consider Secure Communities. As Kalhan noted in 2013, the Visa Reform Act directed federal agencies to ensure that databases are “readily and easily accessible” to federal immigration officials “responsible for determining an alien’s admissibility ... or deportability.”100 But Congress never explicitly authorized the “routine bulk transmission to DHS of all state and local identification records” involved in Secure Communities.101 That's true of other ICE surveillance programs as well. Congress has never explicitly authorized ICE to routinely seek bulk records about the public from state agencies or private companies.

• 96. Anil Kalhan, Immigration Surveillance, 74 Md. L. Rev. 27 (2014).
• 97. Id. at 2.
• 98. Ana Muñiz, Secondary ensnarement: Surveillance systems in the service of punitive immigration enforcement, Punishment & Soc’y 2 (Feb. 11, 2020).
• 99. See, e.g., 8 U.S.C. § 1357.
• 100. Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1105, 1130 (2013).
• 101. Id. at 1130.