Heightened surveillance of noncitizens in the United States has been increasing since the 1980s. See Anil Kalhan, Immigration Surveillance, 74 Md. L. Rev. 1, 11–16 (2014). Throughout the decades, citizens and noncitizens at the border have been subjected to more intrusive questioning, as well as searches and seizures of computer hard drives and other electronic storage media with limited, if any, judicial oversight. Id. at 16–17. This may promulgate extreme bias of the enforcement agent. See id. at 20–25. For example, soon after the 2001 terrorist attacks, the Federal Bureau of Investigation (FBI) initiated a program of voluntary interviews for thousands of nonimmigrant Arab and Muslim men; subsequently, in 2002, the Attorney General required noncitizens from specific countries which were predominately Arab or Muslim to register in a national database. Id. at 20.
Through the advancement of technological resources, the expansion of pervasive surveillance and heavy enforcement has become limitless. See Kristin Rodil, Current Developments in the Executive Branch: Department of Homeland Security to Collect Social Media Information on Immigrants, 32 Geo. Immigr. L.J. 267 (2018). In September 2017, the Department of Homeland Security (DHS) announced that it would begin collecting social media information on visa applicants and current visa holders. Id. at 267. Notably, this includes legal permanent residents and naturalized citizens. Id. This follows President Donald Trump’s executive order to institute “extreme vetting” of immigrants who desire to enter the country. Id. at 268; see also Gregory Korte, Trump Signs Order Resuming Refugee Admissions — but with ‘Extreme Vetting,‘ (Oct. 24, 2017, 9:28 PM), https://www.usatoday.com/story/news/politics/2017/10/24/trump-signs-order-resuming-refugee-admissions-but-extreme-vetting/796992001/. Shortly thereafter, a draft DHS report that called for long-term surveillance of Sunni Muslim populations was discovered. Azadeh Shahshahani, Government Spying On Immigrants in America Is Now Fair Game. What Next?, Guardian (Feb. 12, 2018), https://www.theguardian.com/commentisfree/2018/feb/12/government-spying-immigrants-america. The report claims long-term surveillance of this population is necessary as a matter of public health and safety, but ignores significant drivers of attacks, like Caucasian right-wing citizen extremists, by absurdly limiting its dataset. Hugh Handeyside, Leaked DHS Report Uses Junk Science to Argue for Surveillance of Muslims, Am. Civil Liberties Union (Feb. 7, 2018), https://www.aclu.org/blog/national-security/discriminatory-profiling/leaked-dhs-report-uses-junk-science-argue. Similar to previous reports drafted by DHS, this report assumes what it sets out to prove—Muslims are dangerous because they are Muslim and, thus, should be subject to heightened surveillance. See id.
To effectively sift through the vast amount of information collected, the Immigration and Customs Enforcement Agency (ICE) has sought industry experts to develop an algorithm that will “assess potential threats posed by visa holders in the United States and conduct ongoing social media surveillance on those deemed high risk.” Rodil, supra at 270 (emphasis added). At face value, it seems innocuous, and potentially efficient, to use algorithms to sort through mass amounts of data in an attempt to recognize any potential threats; however, such confidence in algorithms is ill-founded because the data used to create algorithms may not be not neutral. Miranda Bogen, Artificial Intelligence Will Force Us to Confront Our Values, Upturn (Sept. 22, 2016), https://medium.com/equal-future/artificial-intelligence-will-force-us-to-confront-our-values-6f32682a32ec.
Currently, and for the foreseeable future, artificial intelligence (AI) functions as “massive datasets” that do not think for themselves. Id. Rather, AI machines are taught by humans to perform tasks based on data provided to them. Id. “[T]his data often reflects unhealthy social dynamics, like race and gender-based discrimination that can be easy to miss because we’ve become so desensitized to their presence in society.” Id. Unlike our judicial system, in which principles that are ambiguous in nature are constantly debated, algorithms cannot ruminate over legal principles and are limited to the ideals or biases that are inputted. Thus, this poses the question: “Which concrete versions of our values do we codify in algorithms when we have been coasting in social and political ambiguity for so long?” Id.
Private advocates and civil liberty groups began expressing their concerns since the offset of the new policy. Rodil, supra at 270. On May 24, 2018, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request to seven federal agencies, including the FBI, DHS, Department of Justice, and ICE, seeking documentation to determine how these agencies are collecting and analyzing content from sources like Facebook, Twitter, and other social media sites. Hugh Handeyside, We’re Demanding the Government Come Clean on Surveillance of Social Media, Am. Civil Liberties Union (May 24, 2018, 11:00 AM), https://www.aclu.org/blog/privacy-technology/internet-privacy/were-demanding-government-come-clean-surveillance-social. Hugh Handeyside, a senior staff attorney at the ACLU National Security Project, contends that government surveillance can have drastic consequences on individual freedom. Id. “A single Facebook post or Tweet may be all it takes to place someone on a watchlist, with effects that can range from repeated, invasive screening at airports to detention and questioning in the United States or abroad.” Id. Social media surveillance produces its most “chilling effects” on speech and expression. Id. The government is essentially criminalizing any political dissent or organizing, thus causing drastic effects on fundamental rights of freedom of speech. See id.
Additionally, there is at least one lawsuit challenging the First Amendment issues of these regulations. Knights Institute v. DHS, No. 1:17-cv-07572 (S.D.N.Y. filed Oct. 4, 2017) (Knight First Amend. Inst.); see also Rodil, supra, at 272. This suit attempts to challenge a policy which is described to “chill free speech to the detriment of U.S. residents and non-residents alike.” Rodil, supra, at 272. However, since the Constitution does not provide explicit protections to individuals from having information shared, it is unclear whether the Court will apply strict scrutiny, as applied in other freedom of speech cases, on this issue. Id. This question could have impactful results on specific citizens, arguably violating the Equal Protection Clause of the Fifth Amendment. Azadeh Shahshahani, Government Spying on Immigrants in America Is Now Fair Game. What Next?, Guardian, Feb. 12, 2018, https://www.theguardian.com/commentisfree/2018/feb/12/government-spying-immigrants-america. Ultimately, “[t]he message this new rule sends to American immigrants, and specifically naturalized citizens, is that we are not entitled to the full exercise of our first amendment rights [like] native-born citizens.” Id. As this battle between security and liberty continues, the United States must scrutinize what is really being sacrificed under the guise of border control.
*Sumbul is a second-year law student at the University of Baltimore School of Law and serves as a staff editor for Law Review. She is a member of the Royal Graham Shannonhouse III Honor Society, the University of Baltimore School of Law Honor Board, American Constitution Society, and Women’s Bar Association. Additionally, she sits on the board of the Immigration Law Association and National Lawyers Guild; she also serves as the student liaison to the Public Justice Center Lawyers’ Alliance. Sumbul has enjoyed the opportunity to intern with the Equal Employment Opportunity Commission and Maryland Court of Special Appeals in Judge Alexander Wright’s Chambers. She looks forward to working with Ballard-Spahr LLP in the summer of 2019.