Homeland Security’s Intelligence Overreach: Two Cases Illustrate Risks to Civil Society

Two stories this week show how the Department of Homeland Security is deploying its intelligence apparatus against activists, journalists, and human rights lawyers. While this type of political surveillance rightly raises serious concerns, it is hardly surprising given the immense growth in DHS’s intelligence gathering programs during and since the Obama administration, and the lack of meaningful standards, safeguards, and oversight of their operation.

Tracking Journalists, Lawyers, and Protesters

NBC7 San Diego published a leaked copy of a set of slides titled “San Diego Sector Foreign Operations Branch: Migrant Caravan FY-2019, Suspected Organizers, Coordinators, Instigators and Media,” dated January 9, 2019. The document, which appears under a U.S.-Mexican seal, is essentially a surveillance target list with photographs of 59 people, 40 of whom are identified as U.S. citizens, all of whom seem to have some connection to migrant caravans heading from Central America to the United States. “Alerts” have been placed against the information of 43 people, including 28 Americans. DHS kept dossiers on the targets as well, including one that was shared with NBC 7 on Nicole Ramos, an attorney with a legal center for migrants and refugees in Tijuana, Mexico.

DHS claims it was tracking people who were in the vicinity of violence near the border in November 2018 and just wanted to talk to them as part of its investigation of those incidents. This justification rings hollow; it is much more plausible that the agency was tagging people based on their perceived involvement with the caravan, not as potential witnesses to any incident of violence.

A more likely explanation is that either Mexican or U.S. authorities were aiming to take immigration-related actions against people who were perceived to be “troublemakers” based on their roles assisting or reporting on migrants seeking to enter the United States. In addition to noting questioning at the border, the slides show that several people have been arrested or deported by the Mexican government or had their visas revoked. And, of course, wanting to talk to witnesses wouldn’t require the creation of dossiers on attorneys and activists.

Far from the southern border, officers of the Immigration and Customs Enforcement (ICE) division of DHS in New York City were also keeping tabs on protests. Documents obtained by The Nation via a Freedom of Information Act (FOIA) request included a spreadsheet of public protests, titled “Anti-Trump Protest Spreadsheet 07/31/2018.”

The document covered protests during the two-week period from July 31 to August 17, suggesting that such monitoring may be undertaken on a regular basis. It also showed the number of people who had signed up for the protests on Facebook, indicating that ICE was monitoring social media to follow political movements.

DHS claims it was monitoring leftist activists in New York to provide agents from ICE’s Homeland Security Investigations (HSI) unit with “situational awareness” information in case they were traveling through the city “on work or personal time.” Again, the title of the document gives away what is likely the agency’s true intent: the list is not about protests or demonstrations in general, it is focused on “anti-Trump” (and anti-ICE) political activity.

No Guardrails Against Abuse

Unsurprisingly, DHS asserts that everything it did complied with applicable rules. Leaving aside any potential constitutional issues, the agency has a point. The policy framework adopted by DHS for its intelligence capabilities is so weak that it hardly provides any guardrails against abuse.

For example, Customs and Border Patrol (CBP) and ICE, both together and separately, collect information to assign individual risk profiles to travelers; these are used to determine what level of scrutiny they will face and even whether they are allowed into the country at all.

The secret sauce of deciding someone’s risk score is obviously not known. But we also don’t know how much about how DHS validates its methodology or ensures that it doesn’t incorporate discriminatory criteria, which have been consistent criticisms of risk assessments in other contexts. Notably, the Department of Justice’s racial profiling guidance does not even apply to DHS “interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.”

We do know, however, that an individual’s risk profile can be based on social media information tracked by one of the many data-mining companies working with DHS, or it might even be based on ad hocqueries of information on the internet by agents. Moreover, CBP’s Automated Targeting System (ATS), which is used to generate risk profiles, can include “information that could directly indicate the racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sex life of the individual.” This could be used to target individuals, although the agency claims it filters out this information except in exigent circumstances.

CBP and ICE also use their data systems to undertake “link analysis” and “social network analysis” to identify potential associations among people, groups, and events, as well as trend, pattern, and predictive analysis. That could be useful for uncovering criminal networks, but also provides a means of tracking activist groups.

While ICE’s Enforcement and Removal branch is the face of its crackdown on undocumented immigrants, behind the scenes HSI is working overtime to identify targets and is responsible for intelligence gathering and analysis more broadly, including analysis of links, networks, and trends. HSI has at its disposal a range of information and analytical capabilities, including data-mining tools purchased from private vendors such as Palantir, Giant Oak, and West Publishing (a subsidiary of Thompson Reuters), that can be used to track people.

DHS also has invested heavily in so-called “situational awareness” tools. Its Office of Operations Coordination runs a Media Monitoring Capability program, which continuously monitors activities on websites such as YouTube, Twitter, and Facebook, using publicly available search engines and content aggregators. It looks for 13 different categories of “Items of Interest,” including: border control, immigration, national and international security and public safety.

As recently at 2011, the program also explicitly tracked “positive and negative reports” on DHS in the press. In the wake of criticism from many in Congress, this element was discontinued and DHS guidance now clarifies that individuals are not monitored on the basis of First Amendment-protected activities, such as criticism of DHS initiatives.

But analysts can still generate reports that focus on First Amendment-protected activities or public reaction to DHS so long as they are “operationally relevant,” e.g., “long wait times at TSA checkpoints” or “protest shuts down I-95.” It’s not too hard to find a way to do that. The breadth of the program is ameliorated by fairly strict limits on the collection of personally identifiable information.

More troubling is a new initiative launched last year by the National Protection and Programs Directorate called the Media Monitoring Services (not to be confused with the Media Monitoring Capability in the Office of Operations Coordination). It revives the controversial program for tracking what people are saying about DHS and creates a list of journalists and influencers whose work it will monitor. While DHS has not yet published the required Privacy Impact Assessment for the program, it obviously cannot include restrictions on collecting individuals’ personal information since that is the purpose of much of the program.

NBC reports that the Chairman of the House Homeland Security Committee, Rep. Bennie Thompson, has already asked CBP to provide “a copy of the list with the 59 names, a copy of any dossiers on the individuals, an explanation of why each person was included on the list, an account of who had been stopped for screening and an account of any cell phone seizures.” And the DHS Inspector General is investigating. That’s an excellent start. But the public and policymakers need to start paying systematic and sustained attention to DHS’s intelligence-gathering programs or we will only see more stories like the two this week.

 

IMAGE: The logos of the U.S. Department of Homeland Security are seen on computer terminals in a training room of the Cyber Crimes Center of the U.S. Immigration and Customs Enforcement October 13, 2009 in Fairfax, Virginia. (Photo by Alex Wong/Getty Images)

 

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About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).