smart borders

Access Now sues U.S. CBP and ICE agencies over migrant data

Leer en español.

With the support of the Harvard Law School Cyberlaw Clinic at the Berkman Klein Center for Internet & Society, Access Now this week is suing the U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) agencies due to their delayed and inadequate responses to requests submitted under the Freedom of Information Act (FOIA). The requests are meant to clarify a number of concerns regarding the opaque and dangerous cross-border exchange of personal data of migrants, refugees, asylum seekers, and other people on the move, between the United States and various Latin American countries.

It’s unacceptable that ICE and CBP have not retrieved any meaningful information since we requested it in 2022. To what extent is there profiling or automated decision-making? How many people have access to migrants’ sensitive data? The opaqueness around this and other questions endangers the privacy of those on the move and their chances to build their future safely. Ángela Alarcón, Campaigner for Latin America and the Caribbean at Access Now

Access Now’s information requests include:

  • the full text of any data-sharing agreements between the U.S. and any government in Latin America and the Caribbean;
  • records describing any biometric database used in conjunction with any other government under any data-sharing agreements;
  • records describing the intended, permitted, limited, or prohibited uses of biometric data of people on the move;
  • manuals, trainings, policy statements, or similar records describing the intended, permitted, limited, or prohibited uses of the controversial CBP One app; and more.
People on the move are particularly vulnerable, and the U.S. should be a sanctuary for migrants where their human rights are respected. Yet the Department of Homeland Security is relying on questionable data from human rights-abusing countries people have left to make decisions on their future. It’s outrageous that even a single person would be unjustly denied asylum based on these shadowy data-sharing agreements. Michael De Dora, U.S. Policy and Advocacy Manager at Access Now

Access Now submitted a FOIA request to CPB about their app-based data collection in December 2022. After a year and a half of silence, CBP finally responded in May 2024 with links to various general documents that did not address the bulk of the requested information. After multiple failed attempts to negotiate with the agency to provide the information requested, Access Now is seeking a court order for the immediate production of responsive records.

A separate request about international data sharing was initially sent to the Department of Homeland Security’s (DHS) Privacy Office, which then forwarded part of the request to ICE for further processing. In November 2023, ICE answered that it had no responsive records – despite articles on ICE’s website describing data-sharing agreements with Guatemala and Mexico. Access Now appealed, but ICE maintained its position and failed to provide sufficient details about how and where they looked for records. Access Now’s lawsuit against ICE challenges the adequacy of ICE’s search.

The requested information is key to overcoming the lack of transparency from authorities and companies deploying technology in migratory contexts, and to fully understand the scope of the policies and technologies that result in intensive surveillance of migrants even before they set foot in the United States.

Other relevant information on surveillance impacting Latin American migrants is available at the Coalición Latinoamericana #MigrarSinVigilancia page.