Not All Surveillance is Created Equal

PRIVACY WATCH--There is a classic debate—one that might come up in high school classrooms—about "privacy versus security," as though those are two sides of one coin. To what degree are we willing to forfeit our privacy in order to live in a safe society? But this debate often misses the inequities in how "security" is enforced in practice. People of color, the poor, and those who are already disenfranchised by the criminal justice system are disproportionately subjected to surveillance. 

Immigrants, both undocumented and legal, are among those most vulnerable to surveillance. Given the Trump administration's ramped-up commitment to immigration enforcement, the stakes are high. The state is watching all of us, but it's not watching everyone equally.

RISING SURVEILLANCE OF IMMIGRANTS: WORLD WAR I TO 9/11

Surveillance in the United States has often begun at flashpoints: wartime or moments of crisis deemed so dangerous that civil liberties went out the window. This phenomenon is old: During the Civil War, Abraham Lincoln suspended the writ of habeas corpus and arrested a military officer.

But it was during World War I, after decades of increased immigration to the U.S., that the phenomenon collided with anti-immigrant sentiment. In his book Manufacturing Hysteria, Jay Feldman notes that it was then that the government established "the precedent of manipulating nativist fears as a way of clamping down on civil liberties and curtailing dissent." By the end of the war, 2,300 immigrants were interned; many more were arrested. Riding the tail end of the wartime fear, Congress passed the Immigration Act of 1918, which ordered the deportation of immigrants with anarchist beliefs.

So, it began. Since then, this pattern has continued, and not always during wartime. Throughout the late 1920s and '30s, Mexican immigrants were deported en masse. During World War II, Japanese Americans—immigrants and citizens—were interned as part of a broad surveillance campaign against "enemy aliens." After 9/11, President George W. Bush signed the Patriot Act, which, among other things, allowed law enforcement to share intercepted telephone and email communications without a court order. Meanwhile, hundreds of foreign-born people were detained without due process. The U.S. Immigration and Customs Enforcement, or ICE, was created under the Bush administration.

IT'S NOT JUST WIRETAPPING ANYMORE: TODAY'S SURVEILLANCE

Surveillance technology has become increasingly sophisticated in the past decade, and local police, sheriffs' departments, and federal agencies are adopting more new technologies. Some of these are being used at the border as preventative measures against illegal immigration; others might be used to track undocumented immigrants already living in the U.S.

New tools being used in immigration enforcement include biometric facial recognition technology and StingRay tracking devices. Facial recognition technology involves computer programs that can analyze and identify human faces. The programs can be used in combination with images from regular surveillance cameras, mug shots, or photos from social media. In August, the government started using this technology at the border.

StingRay tracking devices mimic cell towers and allow for the interception of signals from mobile phones, thus gathering location and other identifying information. In June, the Supreme Court ruled that law enforcement needs a warrant for collecting this kind of data from providers—a potential legal precedent for the regulation of surveillance technology. Many local departments use StingRays in criminal investigations, and the Detroit News reported that ICE received permission to use one in a deportation.

In general, it's hard to know how these tools are being used, according to Dave Maass, a researcher at the Electronic Frontier Foundation. "There's not a lot of transparency around immigration proceedings," Maass says. Contracts between ICE and makers of technology are often among the only clues.

AUTOMATIC LICENSE PLATE READERS, VIGILANT SOLUTIONS, AND ICE

One of the most worrisome technologies that ICE uses is automated license plate readers (ALPRs). ALPRs are devices that use tiny, high-speed cameras to photograph the license plates of passing cars. They can be mounted on traffic poles or tollbooths. Each photo generates information: a plate number, a location, a date, and a time. Packaged together, this information is stored in a database, sometimes indefinitely, and law enforcement can search it in a variety of ways.

The American Civil Liberties Union and privacy advocates argue that the scans, in aggregate, can function as a kind of location tracker. ALPRs are also one of the most widely used surveillance technologies available today—and are a focal point for immigration enforcement.

In January of 2018, ICE entered into a contract with Vigilant Solutions, a major provider of ALPR technology with a massive database of 10 billion license plate scans. Though law enforcement agencies can restrict ICE's access to their own data if they choose to, the contract entitles the agency to a vast swath of commercial data, and there are several loopholes that might allow ICE to access local department data through other means. ICE has been straightforward about how it uses that data: in criminal and civil immigration investigations.

LOCAL EFFORTS TO REGULATE SURVEILLANCE

State, local, and federal laws have not caught up with the proliferation of surveillance technology broadly. There are relatively few state or federal limits on how data can be stored and shared.

Many efforts to regulate the use of surveillance technology in immigration have been happening at a local level, in so-called sanctuary states and cities. In California, the sanctuary state law mostly prohibits state and local law enforcement from sharing data with federal immigration enforcement, but news non-profit the Voice of San Diego—relying largely on public records requests—found that San Diego police were doing just that. Some cities have taken matters into their own hands, passing stronger ordinances about how data can be used and shared. Oakland, Davis, and Berkeley in California have all passed municipal laws in attempts to rein in the spread of the technologies and to increase oversight.

Still, as of now, the use of these technologies is mostly unregulated. Immigrants—especially undocumented immigrants—remain particularly vulnerable to patterns of inequitable enforcement.

(Sophie Haigney is a freelance writer and reporter covering arts, books, culture, and technology. This report was posted first at Pacific Standard.

-cw