fbpx

ACLU Sues DHS, et al., Over Cellphone Tracking of Immigrants

ACLU Sues DHS, et al., Over Cellphone Tracking of Immigrants

Written by Taher Kameli & Chathan Vemuri

A recent source of controversy in the Trump Administration’s typically hardline approach to illegal immigration concerns the surveillance of social media by Homeland Security Investigations to tracking down immigrant activity, violations, and the First-Amendment-protected expression disapproved of by authorities that lead to detention and deportation.[1] Recently, this has entailed tracking and gathering information from electronic devices such as laptops, tablets, thumb drives, and cell phones.[2]

 

For instance, searching these devices and using tools to unlock encrypted information on these devices of those coming near the US border with friends and family in the US they may potentially investigate, the Homeland Security Investigations division of Immigration and Customs Enforcement (ICE) can gather information from social media sites on these devices to determine who to investigate and target.[3]

 

Typically, this is used to target groups vulnerable to government discrimination such as Arabs and Muslims, Hispanic youth typically profiled as gangsters, and others.[4] Meanwhile, despite claims from the US government that these methods help reduce “threats” from supposedly “dangerous groups,” it has effectively been used by the US government to deport immigrants from particular groups based on racial stereotypes as well as those who are politically outspoken and critical of US immigration policy.[5]

 

Particularly those that use social media to express these views.[6] The issue has not been helped by social media providers themselves, where apps have sold private information of users to companies seeking to tailor their advertising efforts, as well as to the U.S. Government agencies like ICE, who use it to track down and arrest immigrants.[7]

 

Nevertheless, there has been significant pushback to these methods, especially recently in light of recent revelations from earlier in 2020 about how the departing Trump Administration bought access to commercial databases that track cellphone locations to detect and arrest persons suspected of immigrating to the U.S. illegally.[1] A recent lawsuit is particularly significant. The American Civil Liberties Union (ACLU) has filed a lawsuit against the U.S. government as of December 2, 2020, for purchasing and using cell phone data to track down and arrest immigrants.[2]

 

Specifically, it is filing suit against the Department of Homeland Security, ICE, and US Customs and Border Protection (CBP), demanding that they release records about these purchases.[3]  Thus, the lawsuit arose after the ACLU failed to obtain additional records from US government agencies as to how purchased cell phone data is used, despite requesting the data under the Freedom of Information Act (FOIA).[4]

 

Furthermore, the ACLU uses the lawsuit to challenge the legality of the Government’s purchase of cell phone location data under the Fourth Amendment ban on unreasonable searches and seizures, pointing to the 2018 Supreme Court ruling in Carpenter v. United States that “law enforcement agencies cannot collect location information from a cellphone company absent a search warrant.”[5]

 

Therefore, this lawsuit grapples with the growing concern of the ACLU and other rights groups about how the government is using the growing private sector data trade to buy private information collected from individuals’ technological devices from third party merchants.[6] Now, exactly how government agencies like the DHS, ICE, and the CBP use this data remains something of a mystery, given the lack of transparency from the government.[7]

 

Although, the Supreme Court in Carpenter made its ruling, buying this data from third-party companies threatens this ruling’s effectiveness as it gives the US Government a loophole to collect data on people they suspect of being illegal immigrants.[1]

 

In addition to challenging the government’s unconstitutional surveillance and arrest of suspected “illegal immigrants” stemming from this practice, ACLU hopes to use the lawsuit to help educate the public about how government agencies use invasive tracking technology to crack down on immigration, whether within the country or at the border and how this conflicts with a commitment to the Constitution prohibiting unreasonable searches and seizures.[2]  Therefore, internal monitors like the DHS’s group Watchdog agreed to investigate the DHS’s monitor of cell phone data without a warrant in response to an inquiry from Democratic party senators in October.[3]

 

Nonetheless, the lack of response from the DHS itself over the extent of its usage of these purchased records in its anti-illegal-immigration efforts has brought about a direct challenge from rights groups like the ACLU and raise serious questions about the lengths the US Government will go to curb illegal immigration and what it might mean for the fundamental rights of those living in the US who have arbitrarily deemed a threat by the US government.

 

In the end, how this lawsuit will proceed in the coming months is anyone’s guess but it represents a significant first step in bringing these questions and concerns to American courts concerning the Government bypassing US privacy laws by purchasing device data like those from cell phones.

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the ACLU’s new lawsuit and the dangers of the government crackdown on immigration using purchased private data culled from electronic devices.

 

[1] Id.

[2] Klar, Rebecca, ACLU Sues DHS For Records on Purchased Cell Phone Data to Track Immigrants, The Hill (Dec. 12, 2020, 12:26 PM EST) available at https://thehill.com/policy/technology/528363-aclu-sues-dhs-for-records-on-purchased-cell-phone-data-to-track-immigrants

[3] Id.

[1] Zakrzewski, Cat, The Technology 202: ACLU sues DHS Over Purchase of Cellphone Location Data Used to Track Immigrants, Wash. Post. (Dec. 2, 2020, 9:25 AM CST) available at https://www.washingtonpost.com/politics/2020/12/02/technology-202-aclu-sues-dhs-over-purchase-cellphone-location-data-used-track-immigrants/

[2] Wessler, Nathan Freed, The U.S. Government is Secretly Using Cell Phone Location Data to Track Us. We’re Suing, Am. Civ. Liberties Union https://www.aclu.org/news/immigrants-rights/the-u-s-government-is-secretly-using-cell-phone-location-data-to-track-us-were-suing/ (Dec. 2, 2020)

[3] Lahoud, Raymond G., ACLU Sues DHS Over Purchase of Cellphone Location Data to Track Immigrants, Nat’l Law Rev. (Dec. 17, 2020) available at https://www.natlawreview.com/article/aclu-sues-dhs-over-purchase-cellphone-location-data-to-track-immigrants

[4] Id.

[5] Id.

[6] Zakrzewski, Cat, The Technology 202: ACLU sues DHS Over Purchase of Cellphone Location Data Used to Track Immigrants, Wash. Post. (Dec. 2, 2020, 9:25 AM CST) available at https://www.washingtonpost.com/politics/2020/12/02/technology-202-aclu-sues-dhs-over-purchase-cellphone-location-data-used-track-immigrants/

[7] Id. (The CBP claims that “it had privacy measures in place to ensure that it only accesses a small amount of location data, and that the data it uses is anonymized…” and that the purchased location information “’doesn’t include cellular phone tower data, is not ingested in bulk and doesn’t include the individual user’s identity[.]’”)

[1] Social Media Surveillance by Homeland Security Investigations: A Threat to Immigrant Communities and Free Expression, Brennan Center for Justice (Nov. 15, 2019) available at https://www.brennancenter.org/our-work/research-reports/social-media-surveillance-homeland-security-investigations-threat

 

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Wessler, Nathan Freed, The U.S. Government is Secretly Using Cell Phone Location Data to Track Us. We’re Suing, Am. Civ. Liberties Union https://www.aclu.org/news/immigrants-rights/the-u-s-government-is-secretly-using-cell-phone-location-data-to-track-us-were-suing/ (Dec. 2, 2020)