In Freedom of Information Act lawsuit EPIC v. DHS, EPIC is seeking records of communications between the Department of Homeland Security and the now-defunct Presidential Advisory Committee on Election Integrity (the Commission) regarding the transfer of personal voter data.
On May 11, 2017, President Trump signed an Executive Order establishing the Commission. Its purpose was to “study the registration and voting processes used in the Federal Elections” and to issue a report to the President addressing three specific issues. The Commission was created after President Trump’s repeated assertions that roughly three to five million illegal votes were cast in the 2016 Presidential election.
In an unprecedented request for sensitive voter data, the Commission sent letters to all fifty states and the District of Columbia asking for names, dates of birth, addresses, political party affiliation, last four digits of voter’s social security number, and voter history. The Commission’s demand for detailed voter records included directing state election officials to send voter records to an unsecured website and proposing to publish partial social security numbers that would enable identity theft and fraud.
On July 3,2017, EPIC filed a lawsuit for a temporary restraining order to halt the Commission’s collection of state voter information. A week later, the Commission announced that it would suspend the collection of voter data pending the court’s decision on EPIC’s motion.
The Commission not only sought state voter data, but it also sought information from federal agencies. On July 19, 2017, the Commission discussed the collection of data from federal agencies, including the DHS. Commission member Hans Anatol von Spakovsky described data that he thinks the Commission should get from federal databases, including two unnamed DHS databases on immigration detentions and citizen applications. EPIC swiftly filed a Freedom of Information Act request to the DHS seeking communications between the agency and the Commission regarding the transfer of sensitive voter information.
President Trump Disbands the Commission
On January 3, 2018, President Trump issued an Executive Order terminating the Commission. EPIC filed this suit after President Trump said he asked the DHS “to determine the next course of action.” A DHS spokesman stated that the DHS is taking over the panel “in support of state governments who are responsible for administering elections, with efforts focused on securing elections against those who seek to undermine the election system or its integrity.”
Immediately after the Commission’s termination, former Vice Chairman Kris Kobach announced that the data collection activity would shift to the DHS, specifically the U.S. Immigration and Customs Enforcement. A DHS spokesman stated that former Vice Chairman Kobach will not be advising the DHS.
In a January 9, 2018 court filing, the White House intends to destroy all state voter data collected by the Commission “pending resolution of outstanding litigation involving the Commission and pending consultation with the National Archives and Records Administration (NARA).”
The public has a right to know about any proposals to transfer personal data between the DHS and the Commission. The sensitive information that the Commission sought is almost certainly protected by the Privacy Act, which restricts disclosure of personal data maintained by federal agencies. The Commission’s previous interests in privacy, transparency, and its treatment of data security has consistently fallen short. The collection and transfer of state voter data to DHS would be an egregious violation of millions of American’s privacy.
EPIC urged the Senate to seek assurances that “the DHS will not continue the activities of the Presidential Advisory Commission on Election Integrity.” EPIC, along with ten other organizations, also wrote to Secretary of Homeland Security Kristjen Nielson warning her that accepting or maintaining personal voter data would subject the DHS to obligations under the E-Government Act of 2002, the Privacy Act of 1974, and the Paperwork Reduction Act.
In addition to this Freedom of Information Act case, EPIC v. Commission is still pending in federal court.
- EPIC’s FOIA Request (Sept. 11, 2017)
- DHS Request for Clarification (Oct. 2, 2017)
- EPIC’s Revised FOIA Request (Oct. 2, 2017)
FOIA Communications with DHS
FOIA Communications with ICE
FOIA Communications with USCIS
U.S. District Court for the District of Columbia (No.18-43)
- Executive Order on the Termination of the Presidential Advisory Commission on Election Integrity (Jan. 3, 2018)
- EPIC: Democracy and Cybersecurity: Preserving Democratic Institutions
- EPIC: Open Government Project
- ODNI, EPIC v. Presidential Election Commission
- EPIC: Voting Privacy and the Presidential Election Commission
- EPIC: Voting Privacy
- Spencer S. Hsu, White House Says It Will Destroy Trump Voter Panel Data, Send No Records to DHS The Washington Post, (Jan. 10, 2018)