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Keep Border Spy Tech Out of Dreamer Protection Bills

UPDATE Feb. 14, 2018: Today, President Trump endorsed Sen. Grassley's bill on border and immigration issues (H.R. 2579). EFF opposes it. Like many of its predecessors, this bill would expand invasive surveillance on Americans and foreigners alike, with biometric screening, social media snooping, drones, and automatic license plates readers.

If Congress votes this month on legislation to protect Dreamers from deportation, any bill it considers should not include invasive surveillance technologies like biometric screening, social media snooping, automatic license plate readers, and drones. Such high tech spying would unduly intrude on the privacy of immigrants and Americans who live near the border and travel abroad.

How We Got Here

In September 2017, President Trump announced that, effective March 2018, his administration would end the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation some 800,000 young adults (often called Dreamers) brought to the United States as children. In January 2018, Senate Majority Leader Mitch McConnell (R-KY) promised to hold a vote in February 2018 on an immigration bill that protects Dreamers. In response to this promise, Democratic Party Senators voted with Republican Party Senators to end last month’s government shutdown. That immigration vote could occur as early as next week, before a short-term federal funding law expires on February 8.

President Trump’s recent framework for immigration legislation calls for unspecified “technology” to secure the border. That framework also calls for border wall funding, more immigration enforcement personnel, faster deportations, new limits on legal immigration, and a path to citizenship for Dreamers.

A bill recently filed by House Judiciary Committee Chair Bob Goodlatte (R-VA) and House Homeland Security Committee Chair Michael McCaul (R-TX) includes a similar blend of immigration policies. This bill (H.R. 4760) may be the vehicle for Sen. McConnell to try to keep his promise of an immigration vote this month.

This year’s Goodlatte-McCaul bill includes many high tech border spying provisions recycled from three bills filed last year: S. 1757, S. 2192, and H.R. 3548. EFF opposed these bills, and now opposes the Goodlatte-McCaul bill.

Biometric Screening at the Border

The Goodlatte-McCaul bill (section 2106) would require the U.S. Department of Homeland Security (DHS) to collect biometric information from people leaving the country, including both U.S. citizens and foreigners. The bill also requires collection of “multiple modes of biometrics.” Further, the new system must be “interoperable” with other systems, meaning together the systems can pool ever-larger sets of biometrics gathered for different purposes by different agencies.

The bill would codify and expand an existing DHS program of facial recognition screening of all travelers, U.S. citizens and foreigners alike, who take certain flights out of the country. Instead, Congress should simply end this invasive program. Biometric screening is a unique threat to our privacy: it is easy for other people to capture our biometrics, and once this happens, it is hard for us to do anything about it. Once the government collects our biometrics, data thieves might steal it, government employees might misuse it, and policy makers might deploy it to new government programs. Also, facial recognition has significant accuracy problems, especially for people of color.

Further, this bill’s border biometric screening must be understood as just the first step towards what DHS is already demanding: biometric screening throughout our domestic airports.

Social Media Snooping on Visa Applicants

The Goodlatte-McCaul bill (section 3105) would authorize DHS to snoop on the social media of visa applicants from so-called “high-risk countries.”

This would codify and expand existing DHS and State Department programs of screening the social media of certain visa applicants. EFF opposes these programs. Congress should end them. They threaten the digital privacy and freedom of expression of innocent foreign travelers, and the many U.S. citizens and lawful permanent residents who communicate with them.

The government permanently stores this captured social media information in a record system known as “Alien Files.” The government is now trying to build an artificial intelligence (AI) system to screen this social media information for signs of criminal intent. The government calls this planned system “extreme vetting.” Privacy and immigrant advocates call it a “digital Muslim ban.” Scores of AI experts concluded that this AI system will likely be “inaccurate and biased.”

Moreover, the bill would empower DHS to decide which countries are “high-risk,” based on “any” criteria it deems “appropriate.” DHS may use this broad authority to improperly target social media screening at nations with majority Muslim populations.

Drone Flights Near the Border

The Goodlatte-McCaul bill (sections 1112, 1113, and 1117) would expand drone flights near the border. Unfortunately, the bill does not limit the flight paths of these drones. Nor does it limit the collection, storage, and sharing of sensitive information about the whereabouts and activities of innocent bystanders.

Drones can capture personal information, including faces and license plates, from all of the people on the ground within the range and sightlines of a drone. Drones can do so secretly, thoroughly, inexpensively, and at great distances. Millions of U.S. citizens and immigrants live close to the U.S. border, and deployment of drones at the U.S. border will invariably capture personal information from vast numbers of innocent people.

ALPRs Near the Border

The Goodlatte-McCaul bill (section 2104) would require DHS to upgrade its automatic license plate readers (ALPRs) at the border, and authorize spending of $125 million to do this. It is unclear whether this provision applies only to ALPRs at border crossings, or also to ALPRs at interior checkpoints, some of which are located as far as 100 miles from the border.

Millions of U.S. citizens and immigrants who live near the U.S. border routinely drive through these interior checkpoints on their way to work and school, while avoiding any actual passage through the U.S. border itself. The federal government should not subject them to ALPR surveillance merely because they live near the border.

ALPRs collect highly sensitive location information. DHS already is using private ALPR databases to locate and deport undocumented immigrants. Likewise, it already is using its own ALPRs at interior checkpoints to enforce immigration laws.

Dreamers and Surveillance

For years, EFF has worked to protect immigrants from high tech spying. For example, we support legislation that would bar state and local police agencies from diverting their criminal justice databases to immigration enforcement. Some Dreamers fear a similar form of digital surveillance: diversion of the federal government’s DACA database, created to assist Dreamers, to instead locate and deport them.

New legislation to protect Dreamers from deportation should not come at the price of other high tech spying on immigrants and others, including biometric screening, social media monitoring, drones, and ALPRs.