Focusing public attention on emerging privacy and civil liberties issues

Secure Communities and Privacy

Latest News

  • DHS Memo Reveals Plan to Impose "Secure Communities" on All States : According to a draft memo, the Department of Homeland Security intends to require that all states comply with the agency's "Secure Communities" program by 2013. Secure communities is a controversial deportation program that relies on extensive data collection and biometric identification. Several states, including Illinois, New York and Massachusetts, objected to the federal program, citing mismanagement, and refused to participate. Previously, the DHS maintained that the program would be voluntary. For more, see EPIC: Secure Communities. (Jan. 10, 2012)
  • EPIC, Coalition Seeks Investigation of New FBI ID Program and "Secure Communities": A coalition of civil liberties and civil rights organizations have asked the Inspector General of the Department of Justice to investigate the FBI's Next Generation Identification program, a "billion-dollar initiative to create the world's largest biometric database." The 70 organizations, including EPIC, have also urged an assessment of "Secure Communities," the mismanaged federal deportation effort. Several states, including Illinois, Massachusetts, and New York, have already withdrawn from the DHS program. For more information, see EPIC - "Secure Communitities." (Sep. 26, 2011)
  • Department of Homeland Security Terminates Biometric Collection Agreements With States, Intends to Continue Program Without Safeguards: The Department of Homeland Security wrote to State Governors, stating that the agency intends to terminate agreements with state and local governments concerning the Secure Communities program. The agency states that it intends to unilaterally pursue the program despite the termination, though it fails to cite any legal authority in support of the tactic. The statement follows lawmakers' recent criticism of Secure Communities. The program collects and discloses biometric information obtained from individuals who come into contact with police. In June, California legislators urged Governor Jerry Brown to suspend the state's participation in Secure Communities, citing a “crisis of confidence” in the program. The lawmakers identified numerous risks raised by the program and noted that "victims of domestic violence have been [wrongfully] placed into deportation proceedings as the result of Secure Communities when they simply called the police for help." Previously, Illinois, New York and Massachusetts ended their participation in the program. For more, see EPIC: Secure Communities. (Aug. 12, 2011)

Introduction

Secure Communities is an American deportation program accused of mismanaged by the states of Illinois, New York, and Massachusetts. Deportation under this program relies upon data exchanges among federal, state, and local law enforcement agencies. U.S. Immigration and Customs Enforcement (ICE), the interior immigration enforcement agency within the Department of Homeland Security, is the program manager.Below is ICE’s self description as of July 2011:

ice-description.jpg

ICE launched the Secure Communities program in March 2008. The Secure Communities Program “carr[ies] out ICE’s priorities. ICE's Mission Statement:

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The program can also be classified as a federal government information-gathering project, because it encourages federal, state, local, tribal, and private sector entities to collect and disclose information. The ISE is described in the Intelligence Reform Act of 2004. The most prominent of the information collection and disclosure initiatives are Fusion Centers. ICE's Mission Statement:

The Secure Communities program has expanded from 14 jurisdictions when announced in 2008, to over 1300 in 2011.

The data-gathering, storing, and analyzing component of the Secure Communities Program is called “Atlas.” On October 1, 2003, President Bush signed the Department of Homeland Security Appropriations Act, 2004, which became Public Law 108-90. ICE received $40,000,000 for customs enforcement automated systems, which would “remain available until expended.” However, the oversight committees sought limitations on funds being used for “Atlas” until certain conditions were met.

Risks created by the Secure Communities Program

Privacy Act Obligations

The Federal Privacy Act requires all federal government agencies that collect or maintain systems of records containing personally identifiable information to make public notice when new systems are created or altered. The process currently described by ICE regarding Secure Communities data collection involves local law enforcement’s collection of fingerprint information from detained persons, without any indication of their current legal status, transmission of information to the FBI, which in turn will disclose the fingerprint information to DHS. The FBI routinely publishes information in the federal register on its fingerprint database and others systems of records the agency maintains.

DHS has not filed a system of records notice for the Secure Communities program, which will rely upon access or use of one or more systems of records. However, on March 31, 2011, DHS published a notice of collection activities regarding the Secure Communities IDENT/IAFIS Interoperability State and Local Agency Assessment form. This does not meet the requirements of the Federal Privacy Act to provide notice on a new system of records or report changes in an existing system of records. The data collection will by the process described necessarily collect information from US citizens or legal residents, which requires steps be taken by the agency to meet its obligations under the Federal Privacy Act.

Deportation of Non-Criminal Aliens

Statistical data released by some jurisdictions that have participated in Secure Communities reveal discrepancies between the program’s mission to target serious criminals and the program’s implementation. According to the most recent ICE statistics, 78% of immigrants arrested between November 2009 and October 2010 through Illinois’ Secure Communities program had no criminal convictions. Of those deported, 53% were not criminals. Given this data, it is unclear whether ICE is effectively removing dangerous criminals.

By submitting the fingerprint scans at the time of arrest, many individuals may be discovered by ICE and potentially deported if they are victims of false arrest or are witnesses to a crime. There are reports that crime victims, such as domestic abuse survivors, have been picked-up by the Secure Communities program. The agency is aware of these problems and issued an agency wide memo. [see folder on Secure Communities]This may have the result of deterring individuals from reporting crimes to law enforcement and may invite racial profiling.

Biometric Data Collection and Retention

The Secure Communities program currently operates through the use of electronic biometrics such as fingerprint scans. Fingerprint images are taken by state, local, and tribal law enforcement officers and are then sent to the FBI. The FBI transmits fingerprint data to ICE.

fingerprint_scan_SC_webpage.jpg

The agency reports that it checks the fingerprint data with agency records with the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) Automated Biometric Identification System (IDENT), see EPIC FOIA obtained document on US VISIT for more information. ICE claims that the “vast majority” of foreign nationals scanned will appear in the IDENT database.

Opt-Out Obfuscation

ICE provided misleading guidance regarding Memorandums of Understanding (MOU) with local, state and tribal government authorities on their ability to opt-out of the Secure Communities program. MOUs are agreements between government entities. Following a Freedom of Information Act request, the National Day Laborer Organization (NDLON), the Center for Constitutional Rights (CCR), and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law filed suit against ICE seeking documents on the ability of state and local jurisdictions to refuse to participate in Secure Communities.

Three states (Massachusetts, Illinois and New York), have recently attempted to withdraw from the program citing concern that immigrants are being deported without having a prior conviction or being part of an ongoing criminal investigation.

On August 5, 2011, DHS-ICE rescinded all Memorandums of Understandings with local and state governments regarding their participation in data collection regarding the Secure Communities program. The agency determined that no agreement was needed if a state or local law enforcement agency submitted fingerprint data to any federal government agency. Local, state, and tribal government law enforcement agencies routinely submit fingerprint data on arrestees to verify that there are no outstanding warrants by other jurisdictions or federal authorities.

Background

ICE was created on April 16, 2003, when President George W. Bush signed House Resolution 1559, a bill titled “War-Related Appropriations,” which became Public Law No: 108-11. According to a Government Accountability Office report [GAO-07-565] ICE is “responsible for enforcing immigration, border security, trade, and other laws by, among other means, investigating and collecting intelligence on individuals and groups that act to violate these laws.”

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ICE’s initial funding was under a program designation of “Operation Liberty Shield.” Secretary Chertoff described the program in a press release published on an archive of the agency’s website. Operation Liberty Shield began as a multi-agency plan to among other things prioritize border protection, airport and rail security. Under the designation of Operation Liberty Shield Customs and Border Protection received $333,000,000 and Immigration and Custom Enforcement received $170,000,000 in funding.

On October 1, 2003, President George W. Bush signed the Department of Homeland Security Appropriations Act, 2004, which became Public Law 108-90. ICE received $40,000,000 for customs enforcement automated systems, which would “remain available until expended.” However, oversight committees sought limitations on funds being used for “Atlas” until the following conditions were met:

Provided, That none of the funds appropriated under this heading may be obligated for Atlas until the Committees on Appropriations of the Senate and the House of Representatives receive and approve a plan for expenditure prepared by the Under Secretary for Border and Transportation Security that: (1) meets the capital planning and investment control review requirements established by the Office of Management and Budget, including Circular A-11, part 3; (2) complies with the Bureau of Immigration and Customs enforcement enterprise information systems architecture; (3) complies with the acquisition rules, requirements, guidelines, and systems acquisition management practices of the Federal Government; (4) is reviewed and approved by the Bureau of Immigration and Customs Enforcement Investment Review Board, the Department of Homeland Security, and the Office of Management and Budget; and (5) is reviewed by the General Accounting Office.

On December 17, 2004, Senate bill 2845, the Intelligence Reform and Terrorism Prevention Act of 2004, became law. This appropriations bill established and funded the Bureau of Immigration and Customs Enforcement Public Law 108-458. This legislation also mandated the integration of all data systems “that process or contain information on aliens, which are maintained by the Department of Homeland Security…, the Department of Justice, at the Executive Office for Immigration Review…; and the Department of State, at the Bureau of Consular Affairs.” The law also established the use of biometrics as a means of controlling entry and exit from the United States. Further, the National Institute of Standards and Technology (NIST) was designated to establish minimum “technical and operational system requirements and performance standards for the use of biometric identifier technology in airport access control systems…”

Laws and the Secure Communities Program

No act of legislation created the Secure Communities program. In fiscal year 2008, $156.8 million was designated to “to identify aliens convicted of a crime, and who may be deportable,” and for detention services. A further $150 million was appropriated in 2009, followed by an increase to $1.5 billion in 2010. Congress requires ICE to file a quarterly report on their execution of the program in order to “make sure all aliens who have been convicted of crimes and ordered removed from the United States are indeed deported to their country of origin.”

The Secure Communities program relies on the Immigration and Nationality Act for definitions and authorities to train law enforcement in the performance of immigration functions.

No administrative regulations have been promulgated to direct the implementation of the program.

EPIC Policy Pages

  • EPIC: Fusion Centers
  • EPIC: National ID/REAL ID
  • EPIC: E-verify
  • Spotlight on Surveillance: Traveler Redress Program
  • EPIC: Spotlight on Surveillance: National Network
  • Resources

    Web Sites

  • Secure Communities Standard Operating Procedures
  • U.S. Department of Homeland Security Secure Communities Program
  • Rights Working Group
  • Immigration Law Clinic Cardozo Law School
  • Uncover the Truth
  • National Immigration Law Center
  • ACLU
  • Electronic Frontier Foundation
  • Federal Register Notices

  • DHS ICE System of Records Notice and Notice of Privacy Act Exemption
  • DHS ICE SEVIS System of Record
  • Refugees, Asylum, and Parole System and Asylum Pre-Screening System
  • Immigration and Customs Enforcement Public Laws

  • House Resolution 1559, a bill titled “War-Related Appropriations,” Public Law No: 108-11 (April 16, 2003)
  • House Resolution 2555, Department of Homeland Security Appropriations Act, 2004, Public Law 108-90 (October 1, 2003)
  • House Resolution 4567, Department of Homeland Security Appropriations Act, 2005, Public Law 108-334 (October 18, 2004)
  • Senate Bill 2845, Intelligence Reform and Terrorism Prevention Act of 2004 Public Law 108-458 (December 17, 2004)
  • House Resolution 1268, Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 Public Law 109-13 (May 11, 2005)
  • House Resolution 2360, Department of Homeland Security Appropriations Act, 2006, Public Law 109-90 (October 18, 2005)
  • House Resolution 2863, Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 Public Law 109-148 (December 30, 2005)
  • House Resolution 972, Trafficking Victims Protection Reauthorization Act of 2005 Public Law 109-164 (January 10, 2006)
  • House Resolution 4939, Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 Public Law 109-230 (June 15, 2006)
  • House Resolution 5122, John Warner National Defense Authorization Act for Fiscal Year 2007 “
  • House Resolution 5441, Department of Homeland Security Appropriations Act, 2007 Public Law 109-295 (October 4, 2006)
  • House Resolution 1, Implementing Recommendations from the 9/11 Commission Act of 2007 Public Law No: 110-53. (August 3, 2007)
  • House Resolution 2206, U.S. Troop Readiness, Veterans, Care, Katrina Recovery, and Iraq Accountability Appropriations Act, Public Law 110-28
  • House Resolution 2638, Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 Public Law 110-329
  • House Resolution 2640, NICS Improvement Amendments Act of 2007 Public Law 110-1180
  • House Resolution (HR) 1473 Department of Defense and Full-Year Continuing Appropriations Act, 2011 Public Law 112-10 (April 15, 2011)
  • Immigration and Customs Enforcement U.S.C. Cited:

  • Customs Enforcement Act of 1986 (19 U.S.C. 2081)
  • Immigration and Nationality Act (8 U.S.C. 1357(g); section 287(g); 101(a)(17); 1101(a)(17))
  • Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1722)
  • Secure Communities’ Agency Reports

  • 2009 Strategic Plan
  • Plan to Utilize the FY 2009 Appropriations
  • Quarterly Reports to Congress became law in 2008

  • Secure Communities First Quarter Report 2008
  • Secure Communities First Quarter Report 2009
  • Secure Communities First Quarter Report 2010
  • Secure Communities First Quarter Report 2011
  • Secure Communities Second Quarter Report 2008
  • Secure Communities Second Quarter Report 2009
  • Secure Communities Second Quarter Report 2010
  • Secure Communities Third Quarter Report 2008
  • Secure Communities Third Quarter Report 2009
  • Secure Communities Third Quarter Report 2010
  • Secure Communities Forth Quarter Report 2008
  • Secure Communities Forth Quarter Report 2009
  • Secure Communities Forth Quarter Report 2010
  • News Articles