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.