The Biden administration is proposing to expand a controversial surveillance program that tracks the whereabouts of more than 180,000 immigrants awaiting their day in court. But there is little transparency about what data is collected by the private company with an exclusive contract to run the program, or what may happen to that data in the future.
In a letter to the Department of Homeland Security (DHS), US lawmakers on 23 February raised fresh concerns about the Intensive Supervision Appearance Program, and the data collection practices of BI Inc, the private company running the effort for US Immigration and Custom Enforcement (Ice).
Lawmakers say the privacy policy of SmartLink, the app that BI requires immigrants to use, is overly broad and leaves unclear what data the company collects and what it does with that information.
A review of BI’s publicly available policies, demonstrations of its products as well as interviews with former employees and immigrants in the program reveal that Ice and BI have issued conflicting information about how often it tracks the location of the people it surveils, that BI’s app collects a broad swath of information on its users, and that BI encourages its law enforcement and government clients to share crime data with each other.
Without sweeping federal laws regulating consumer data, there are few mechanisms to compel BI to share much beyond the basics and even fewer to limit its ability to collect, store and share personal data as it wishes.
In addition to asking DHS to reconsider its exclusive contract with BI altogether, lawmakers are demanding more transparency around BI’s data policies, expressing concern that this information could be used against immigrants.
“We already know that data collected from ankle shackles has been used to conduct enforcement and deportation operations,” the lawmakers wrote.
“This technology has the capability of surveilling not only the subject but also bystanders – including US citizens and individuals with legal status – raising further civil rights concerns and creating a potential for unwarranted surveillance,” the letter reads.
BI referred all questions for this story to Ice. Ice’s acting press secretary, Paige Hughes, said these programs were “are an effective method of tracking noncitizens released from DHS custody who are awaiting their immigration proceedings”.
“As part of the process, DHS officials collect biometric and biographical information – fingerprints, photos, phone numbers, and an address in the United States – and run a background check to identify criminals or those who pose a public safety risk,” Hughes said in a statement. “Those who do not report are subject to arrest and potential removal.”
Ankle monitors and facial recognition
The intensive supervision appearance program (Isap) allows people who have applied for asylum or have been detained by Ice to go home while they await a hearing in court, if they comply with an Ice-prescribed surveillance regime. Among the requirements Ice can impose are ankle monitors, voice message check-ins and facial recognition check-ins through BI’s proprietary smartphone app, SmartLink.
Ice told the Congressional Research Service in 2018 that while it continuously monitored the location of people wearing an ankle monitor, it did not “actively monitor” the location of people being surveilled through the app and only gathered GPS points during those people’s weekly check-ins.
But there are indications BI may be tracking SmartLink users more frequently. SmartLink’s single disclaimer in the App Store warns: “Continued use of GPS running in the background can dramatically decrease battery life.”
Immigrants in the program told the Guardian they had been instructed by BI employees to always keep their phones on so the company could track them. José, an immigrant in the program whose name the Guardian is withholding to protect his immigration case, said he had been told by BI employees to have his phone with him at all times so BI could locate him. Macarena, another Isap participant whose name the Guardian is withholding to avoid jeopardizing her proceedings, was told the app was always running and she always had to have her location services on. Several immigrants told the Guardian they had been told they could not let their phone batteries die. “It’s exactly like my [ankle monitor], but now it’s in my phone,” Macarena said about the instructions she received.
Ice said it does not track location outside of regular check-ins but did not respond to questions about why participants were told location services always needed to be on.
In addition, it appears SmartLink collects far more information than location data. Guardian interviews and a review of documentation suggest SmartLink collects:
-
Images uploaded for weekly check-ins
-
The locations (latitude and longitude) where each of those images were taken
-
Records and copies of correspondence in SmartLink’s messaging feature, including email addresses and phone numbers
-
Any information entered in the app, including personal identifying information
-
Usage details, including when a user accesses or uses the app, and any communication data
-
Mobile device information including internet connection details, IP addresses, telephone numbers and mobile network information
BI’s policies do not make clear how long it stores that information or who has access to it. But former BI case managers said they were able to access the images and location data that immigrants had uploaded to the app for their weekly check-ins in previous months.
That information may be added to the permanent case file the US government keeps on all immigrants, according to Julia Mao, deputy director of the immigration rights organization Just Futures Law. She worries this information could be shared with other agencies or used against the immigrants in the future.
Where does the data go?
In addition to concerns about what data BI collects, lawmakers and advocates worry about whom BI and Ice may be sharing that data with, and whom they could share such information with in the future.
That data could be used in other law enforcement contexts or sold to the highest bidder, said Mao. “We are concerned that some of this data could be shared and monetized.”
BI’s privacy policy states it may share personal information, without restriction, with its subsidiaries, in response to legal requests, and with “third parties as required in connection with your community supervision”.
BI has also encouraged information-sharing between different law enforcement agencies, according to company messaging and former employees. BI clients, which include Ice and local law enforcement agencies that run probation and parole programs, use a BI app called Total Access to access case files. But in addition to managing information, the app allows BI clients to share the locations of people they are monitoring and view the information other law enforcement agencies have shared.
“The information is yours, the data is yours; it is kept confidential. You’ll simply see a dot on the map,” a demo for Total Access says.
If an officer is looking to see whether a person their agency is monitoring was at a crime scene, for instance, they may see dots showing there were people monitored by other neighboring or federal agencies in the area as well. They can then call the appropriate agency to let them know, the demo says.
“When you see this, you’ll be able to literally share crime data from agency to agency,” it continues.
Advocates worry that such sharing practices could lead to information collected during Isap being used against immigrants in the future, even if they gain legal status, said Mao.
“There’s a lot of harassment that happens, especially for Muslims, frankly, regardless of immigration status,” she said. “Folks are and should be fairly concerned about how Ice is going to store or pull this data in the future.”
Lawyers and activists also worry about the potential for BI to sell that data as demand for biometric information grows.
“I both don’t trust Ice with that information and I don’t trust the private company with it, particularly when so many companies have contracts with data brokers to buy and sell information,” said Jacinta Gonzalez, a field director at the Latinx rights organization Mijente.
An estimated 180,000 immigrants are enrolled in Isap today, according to Ice, and at least 95,000 of them are using the SmartLink app. The Biden administration is looking to expand Isap in coming years. The number of people enrolled in the program is growing, and the administration has tasked BI to pilot a new, stricter surveillance mechanism that would require people to stay home 12 hours a day, according to Reuters.