Warner, Kaine Demand Investigation into DHS Use of Surveillance Technology

WASHINGTON - U.S. Sens. Mark R. Warner and Tim Kaine (both D-VA) sent a letter to the Department of Homeland Security's (DHS) Inspector General Joseph Cuffari urging him to investigate current and future DHS procurements that enable the collection, retention, and analysis of sensitive personal data. As DHS continues a mass deportation campaign across the country, Warner and Kaine raised serious concerns that DHS is collecting and utilizing sensitive data about U.S. citizens and non-citizens in ways that may circumvent Fourth Amendment protections and other constitutionally guaranteed civil liberties, while operating with insufficient oversight and accountability.

"We write to you to express our concern that the Department of Homeland Security (DHS) is collecting sensitive personal data that can be used to circumvent civil liberty protections, including those guaranteed under the Fourth Amendment. This matter deserves your office's immediate attention, and we request that your office audit DHS' immigration procurement activities to determine whether they have led to violations of federal law and other regulations that maintain privacy and defend against unlawful searches," the senators wrote.

"Numerous media reports and videos show DHS immigration enforcement operations in cities and towns across the country, including allegations of violations of individuals' civil rights," the senators continued. "On at least two separate occasions DHS law enforcement personnel - one working for Immigration and Customs Enforcement (ICE) and the other for Customs and Border Protection (CBP) - have shot and killed American citizens. Renee Good, a 37-year-old mother of three, was shot 3 times in Minneapolis by an ICE agent. Alex Pretti, a 37-year-old intensive care nurse who worked at a U.S. Department of Veterans Affairs hospital, was also shot in Minneapolis during an encounter with CBP. Additionally, ICE agents have shot and wounded another person and deployed flash bangs and teargas on a family, resulting in the hospitalization of small children, including a 6-month-old baby."

Warner and Kaine noted that alongside these recent, documented instances of excessive and deadly use of force by DHS immigration enforcement is an unprecedented allocation of funds that may be supporting the inappropriate and unsupervised use of surveillance technology.

"In addition to egregious practices we have seen in public reporting, it's important that your office shine light on activities that undergird ICE's enforcement actions including a muddled patchwork of technology procurements that have significantly expanded DHS' ability to collect, retain, and analyze information about Americans," added the senators. "Together, ICE's new information collection tools potentially enable DHS to circumvent the constitutional protections provided by the Fourth Amendment - protections guaranteed to all Americans and all persons within our borders."

"DHS law enforcement agencies have moved to amass potentially sensitive personal data with the unprecedented $165 billion DHS was allocated during last year's partisan reconciliation process. Immigration and Customs Enforcement (ICE) alone received $75 billion, more funding than that allocated to the Federal Bureau of Investigation (FBI), an agency responsible for investigating violations of a significantly greater number of laws," the senators continued.

Warner and Kaine provided a detailed list of questions to Inspector General Cuffari intended to uncover the manner and methods by which DHS collects, stores, uses, and shares data that contains personally identifying information and requested that DHS provide a briefing on their investigation and findings to them.

The senators wrote, "DHS' reported disregard for adhering to the law and its proven ambivalence toward observing and upholding constitutionally-guaranteed freedoms of Americans and noncitizens, including freedom of speech and equal protection under the law, leaves us with little confidence that these new and powerful tools are being used responsibly. Coupled with DHS' propensity to detain people regardless of their circumstances, it is reasonable question whether DHS can be trusted with powerful surveillance tools and if in doing so, DHS is subjecting Americans to surveillance under the pretext of immigration enforcement."

The full text of the letter is available here and below:

The Honorable Joseph V. Cuffari

Inspector General

U.S. Department of Homeland Security

245 Murray Lane SW

Washington, D.C. 20528

Dear Inspector General Cuffari:

We write to you to express our concern that the Department of Homeland Security (DHS) is collecting sensitive personal data that can be used to circumvent civil liberty protections, including those guaranteed under the Fourth Amendment. This matter deserves your office's immediate attention, and we request that your office audit DHS' immigration procurement activities to determine whether they have led to violations of federal law and other regulations that maintain privacy and defend against unlawful searches.

Numerous media reports and videos show DHS immigration enforcement operations in cities and towns across the country, including allegations of violations of individuals' civil rights. On at least two separate occasions DHS law enforcement personnel - one working for Immigration and Customs Enforcement (ICE) and the other for Customs and Border Protection (CBP) - have shot and killed American citizens. Renee Good, a 37-year-old mother of three, was shot 3 times in Minneapolis by an ICE agent.^[1] Alex Pretti, a 37-year-old intensive care nurse who worked at a U.S. Department of Veterans Affairs hospital, was also shot in Minneapolis during an encounter with CBP.^[2] Additionally, ICE agents have shot and wounded another person^[3] and deployed flash bangs and teargas on a family, resulting in the hospitalization of small children, including a 6-month-old baby.^[4]

Recently, your office announced new projects to determine whether ICE adequately investigates allegations of excessive force, appropriately hires and trains its workforce, and whether it adheres to detention standards. We strongly support these oversight efforts and will be closely monitoring your investigations for their independence, accuracy, and recommendations.

In addition to egregious practices we have seen in public reporting, it is important that your office shine light on activities that undergird ICE's enforcement actions including a muddled patchwork of technology procurements that have significantly expanded DHS' ability to collect, retain, and analyze information about Americans. Together, ICE's new information collection tools potentially enable DHS to circumvent the constitutional protections provided by the Fourth Amendment - protections guaranteed to all Americans and all persons within our borders.

DHS law enforcement agencies have moved to amass potentially sensitive personal data with the unprecedented $165 billion DHS was allocated during last year's partisan reconciliation process. Immigration and Customs Enforcement (ICE) alone received $75 billion, more funding than that allocated to the Federal Bureau of Investigation (FBI), an agency responsible for investigating violations of a significantly greater number of laws.

To date, DHS has:

1. Issued a Request for Information (RFI) to Big Data and Ad Tech providers to support ICE's investigation activities;^[5]
2. Published a Notice of Proposed Rulemaking (NPRM), Collection and Use of Biometrics by U.S. Citizenship and Immigration Services, that would expand the types and amount of biometric data the agency can - including allowing collection of biometric data from children under 14;^[6]
3. Issued a RFI to hire 30 social media surveillance contractors to collect information from social media and commercial databases and build profiles on individuals for the Enforcement and Removal Operations (ERO) division;^[7]
4. Issued a Notice of Intent for licenses from Bi2 Technologies - used for scanning individuals' irises;^[8]
5. Entered a contract with Palantir to upgrade the Investigative Case Management (ICM) system - which has access to information from across the federal government - to include the Immigration Lifecycle Operating System (ImmigrationOS);^[9]
6. Reactivated a contract with Paragon Solutions under the FAR 6.302-1 rule, which is reserved for the most unique services;^[10]
7. Entered into a contract with facial recognition software developer Clearview AI^[11] - about which ICE has received a letter from other Senators;^[12]
8. Entered into a contract with Penlink's services which monitor social media and track mobile devices;^[13] and
9. Accessed and utilized software that DHS does not have official access to - including Flock License Plate Scanning Software.^[14]