By: Sabrina Betz, Vol. 24 Staff Writer

Introduction

In relation to the current administration’s push to increase immigration enforcement, U.S. Immigration and Customs Enforcement (ICE) agents have increasingly employed new, pervasive surveillance tactics and tools, including facial scanning apps and data aggregation on individuals. Recent claims of ICE violating constitutional rights have largely been analyzed under the Fourth Amendment, with individuals claiming that these technologies and ICE’s arrests violate their right to be protected against unreasonable search and seizure.

However, the use of surveillance via these emerging technologies also threaten First Amendment freedoms of speech, association, and protest. Extensive biometric surveillance creates a chilling effect on political participation and activism, not only for immigrants but for anyone protesting, given the fact that recent arrests and shootings by ICE have included US citizens. This post aims to explore the overlooked first amendment argument: this biometric tracking and surveillance chills speech, even without unreasonable search and seizure.

Technology Used by ICE

One example of this surveillance drawing increasing concern and attention, is ICE’s use of the Mobile Fortify app, which allows agents to scan someone’s face with a phone and instantly pull information from a number of federal and state databases. According to the Department of Homeland Security (DHS), the app uses images of people’s faces in an attempt to identify people, including photos taken at customs and border protection databases (when people enter/exit the US). When identification is successful, it may provide a subject’s name and possible citizenship or overstay status, among other personal information.

Sources report that the app has been used over 100,000 times, and there is minimal oversight on ICE’s discretion and use of this technology. This is concerning because the app often makes mistakes and misidentifies individuals, especially people of color. Even so, ICE agents frequently use the app as a definitive basis for arrests, and individuals are not given an option to decline being scanned. Thus, agents are able to circumvent traditional investigative processes and blatantly violate privacy rights. As such, courts typically focus their analysis of claims under the Fourth Amendment’s framework and its protection against unreasonable search and seizure.

Current Litigation

The Fourth Amendment is likely the clearest violation in these cases and is certainly implicated due to ICE arresting individuals and placing them in detention centers/searching their information on a database without due process. Still, the First Amendment presents a strong argument to expand and strengthen claims, and courts have supported this in current litigation.   Such arguments are demonstrated in Tincher v. Noem, a currently ongoing federal lawsuit in the US District Court for Minnesota concerning the conduct of ICE agents in Minneapolis (and other cities).

In this case, multiple citizens allege intimidation, arrest, and other physical and verbal abuses by federal agents for merely observing immigration enforcement activity, in violation of their Fourth and First Amendment rights. Though issues of the case are still undecided, the amended complaint emphasizes the point that observation and protest of law enforcement in public spaces has long been recognized as protected expression by the First Amendment.

In a preliminary injunction, the court stated that, “under the guise of protecting the public, federal agents have endangered large numbers of peaceful protesters, legal observers, and journalists—as well as the public that relies on them to hold their government accountable. The First Amendment demands better.” ICE’s intimidation, interference, and detainments of individuals chills one’s rights to expression, transfers to the point that sweeping surveillance tactics create the same effect.

Pervasive surveillance like the tools used by ICE discourages and places a chilling effect on political/free speech as well. The app makes it incredibly easy for individuals who attend protests to be identified, and their data stored, with little to no information on how that data will be used. As a result, US citizens are chilled by the mass surveillance technology and its exacerbation of misidentifications and racial profiling by ICE.

The Supreme Court grappled with the issue of surveillance chilling First Amendment rights in Laird v. Tatum (1972), but ultimately dismissed the claim because plaintiffs had failed to show direct injury required for standing. In the present time however, plaintiffs subject to the mass surveillance administered by ICE should have a better chance at showing actual harm, given the conduct of ICE agents against those engaged in protest against federal agents.

Conclusion

In the face of surveillance technologies being used so frequently by immigration enforcement, and with Fourth Amendment claims often requiring the trigger of unreasonable force to fully encompass their unconstitutionality, it is important to consider the argument that this biometric monitoring affects individuals’ First Amendment right to speak, protest, and organize freely. Crafting First Amendment arguments may be essential to fight the new age of unchecked immigration enforcement and we will likely see a rise in such claims, because surveillance chills speech even before an arrest is made. Where the Fourth Amendment is too narrow to afford protection, the First Amendment provides a broader claim for justice.