Immigration and Customs Enforcement Expands Surveillance Technologies Amidst Privacy Concerns

The U.S. Immigration and Customs Enforcement (ICE) has expanded its acquisition and deployment of advanced surveillance technologies, including mobile facial recognition applications, iris scanners, location data software, and spyware. These tools are intended for identifying and monitoring individuals, with reported use extending to individuals targeted for deportation as well as observers of ICE operations. The expansion has prompted concerns from civil liberties advocates and some members of Congress regarding privacy implications, constitutional rights, and the potential for diminished anonymity.

Technology Acquisitions and Capabilities

ICE's expanded technological toolkit includes various systems aimed at enhancing its ability to identify and track individuals:

These applications allow federal agents to use cell phones for potential identification of individuals and determination of immigration status in the field.

• Mobile Fortify: This app reportedly searches against Customs and Border Protection (CBP) databases, including entry/exit photos, to provide biographical data and indicate "Possible Overstay Status." Photos taken with the app are reportedly stored for 15 years, regardless of a match, and individuals cannot decline being photographed. DHS states Mobile Fortify does not access open-source material or scrape social media.
• Mobile Identify: This application has been made available by CBP on Google's app store for deputized state and local law enforcement.
• ELITE: Developed by Palantir, this app is described as functioning similarly to "Google Maps" by showing locations of potentially deportable individuals and the likelihood of their residence. It reportedly draws from DHS systems and data from other agencies, such as Medicaid records.

ICE has acquired iris scanning devices for identification purposes. CBP has also contracted with Clearview AI, a facial recognition company that reportedly utilizes images from the internet.

Newly licensed software is described as providing "access to vast amounts of location-based data." ICE also reportedly uses tools for tracking cell phone location data and has a subscription with Thomson Reuters for license plate reader data.

ICE reactivated a contract with Paragon Solutions, a company known for developing spyware. One of its tools, Graphite, was reportedly used in Europe to target journalists and civil society members and is described as capable of remotely monitoring a phone, including encrypted messages, without user interaction.

The agency is reportedly enhancing its social media surveillance through new AI-driven software contracts and is considering deploying 24/7 contractor teams to analyze online platforms and databases for user information.

Reported Field Incidents and Citizen Encounters

Reports from multiple locations describe federal agents employing these technologies and interacting with individuals:

• In Aurora, Illinois, a video posted on TikTok reportedly showed masked Border Patrol agents questioning two young individuals on bicycles. One individual, identifying as a 16-year-old U.S. citizen without an ID, was reportedly subjected to a facial scan by an officer using a cell phone. The specific app used in this incident was not identified.
• In Minneapolis, an observer reported that an ICE agent identified her by name and recited her home address after she followed an ICE vehicle.
• In Portland, Maine, an individual reported agents photographed her face and license plate, and an agent reportedly stated they possessed a "nice little database" and that she was "considered a domestic terrorist." Acting ICE Director Todd Lyons denied the existence of a protester database at a congressional hearing.
• Photojournalists have described witnessing agents scan individuals' faces with phones, often observing that those scanned appeared Hispanic.
• Immigration lawyers have stated their clients have been subjected to facial recognition technology, with some clients reportedly detained after Mobile Fortify failed to identify them. An ICE agent testifying under oath mentioned an application that identifies likely home addresses of individuals targeted for deportation.
• Two individuals reported their Global Entry status was revoked after making posts critical of ICE.

Agency Statements and Policy Developments

ICE released a statement indicating that law enforcement has historically leveraged technological innovation to combat crime, including the arrest of criminal individuals, while asserting respect for civil liberties and privacy interests. The Department of Homeland Security (DHS) stated that any technology utilized by its components must adhere to established requirements and oversight frameworks, and defended the accuracy of the Mobile Fortify app. DHS declined to comment on agents knowing observers' personal information, stating it would not reveal law enforcement methods.

DHS has also published a proposed rule that would broaden the agency's authority to collect biometric data from noncitizens and their U.S. citizen relatives during immigration status adjustment applications, such as for green cards or citizenship. The proposed data collection includes facial images, iris scans, finger and palm prints, voice prints, and DNA. A public comment period for this rule is open until early January.

The administration has utilized administrative subpoenas, reportedly issued without a judge or grand jury, to demand personal information from tech companies to unmask anonymous accounts. One individual, who manages an Instagram account critical of ICE, received a subpoena from Meta (Facebook/Instagram parent company) for his account data after identifying an ICE agent using publicly available information. The subpoena cited "Officer Safety/Doxing." This subpoena, along with another, was challenged in federal court, leading DHS to withdraw them.

Congressional and Civil Liberties Concerns

The expansion of these technologies has prompted concerns from various groups:

Senator Edward Markey (D-Mass.) and other senators have urged ICE to cease using a mobile facial recognition app and have sought answers regarding its development, legal basis, inclusion of U.S. citizens in databases, and use on minors or protesters. Over 70 Democratic members of Congress requested an investigation into ICE's warrantless use of cell phone location data.

Organizations including the Center on Privacy and Technology at Georgetown Law and the Electronic Privacy Information Center (EPIC) state that these tools raise concerns about privacy and constitutional rights due to what they describe as an insufficient regulatory framework and oversight.

Representatives from these organizations have characterized the tools as contributing to a "massive surveillance apparatus" and "extremely dangerous surveillance tech that really goes against our Fourth Amendment protections." The American Civil Liberties Union (ACLU) has filed lawsuits in Minnesota and Maine, alleging that agents violated the First Amendment rights of protesters and observers. Government attorneys have denied constitutional violations. The ACLU has also stated that the ability to criticize the government anonymously is a First Amendment right.

David Bier, director of immigration studies at the Cato Institute, described the ability for agents to instantly identify individuals in public spaces as a "big leap" that could diminish anonymity and potentially deter participation in public protests.

Immigration attorney Stephen Manning suggested that technologies like the ELITE app bypass Fourth Amendment protections by aggregating data that would typically require a warrant. Privacy advocates also express concern over the lack of transparency regarding the implementation of technologies like Clearview AI.

Context of Surveillance Infrastructure

The Department of Homeland Security (DHS) has expanded its surveillance capabilities since its establishment following 9/11, under both Republican and Democratic administrations. A 2022 report by Georgetown Law's Center on Privacy and Technology indicated that ICE could locate three out of four U.S. adults via utility records and had scanned one-third of adult Americans' driver's license photos. The Trump administration reportedly indicated that the adoption of these technologies supported its objective of increasing deportations. The administration also engaged in efforts to aggregate Americans' personal data, increasing its accessibility to ICE through data sharing agreements with entities such as Health and Human Services for Medicaid data and an agreement with the Internal Revenue Service. A federal judge later found the IRS agreement to violate federal tax law by disclosing address information to ICE.