On January 16, 2020, the Brennan Center filed a federal lawsuit in New York against the Department of Homeland Security (DHS), Customs and Border Patrol (CBP), and Immigration and Customs Enforcement (ICE) for failing to provide information requested under the Freedom of Information Act (FOIA).
The Brennan Center submitted two separate FOIA requests on November 5, 2018. One request asked DHS and ICE to disclose records relating to the use of the Data Analysis System (DAS), a database to which DHS contributes information. ICE uses DAS to store personally identifiable information (PII) and generates leads for deportation with that data. PII includes biographical information, immigration and criminal history, custody data, naturalization information, and vehicle and insurance information. Neither DHS nor ICE, however, has specified what safeguards are in place to prevent the misuse of US citizen data. This is especially concerning because data included in DAS may be shared with other DHS components as well as undisclosed third parties.
The November 5 FOIA request aimed to make information regarding DAS data handling available to the public in order to allow for more effective evaluation of the lawfulness of DHS’s information collection and usage. The documents requested include specific policies that apply to the use and functioning of DAS, records that detail ICE’s security and privacy standards for handling PII, and details of agreements between DHS and other agencies as well as third party companies.
The second FOIA request was submitted to DHS, ICE, and CBP for records pertaining to DHS’s maintenance of information stored by the National Archives and Records Administration (NARA). The records requested include DHS policies on individuals’ privacy rights and the collection and use of data. One requested record of interest governs the collection and use of social media data. The Brennan Center hopes to make this information public in order to ensure that privacy and First Amendment rights are not being violated by DHS, ICE, or CBP through their data collection efforts.
Despite repeated attempts to follow up on the Brennan Center’s November 2018 FOIA request, none of the agencies has provided the requested records. The original requests for DAS and NARA records, submitted to DHS and ICE, were rejected for being too vague in scope on July 2, 2019. But though the Brennan Center responded with more specific requests in 15 days--within the time frame specified for response—and submitted an administrative appeal on October 15, 2019, ICE closed the requests on October 19, 2019. The requests for NARA records from CBP were also not fulfilled. The Brennan Center has exhausted all possible means by which to access the records that it is legally entitled to under FOIA, and is thus bringing forward this suit to make pertinent information about the potential risks to privacy and first amendment rights available to the public.
Read the Brennan Center’s Complaint
The Brennan Center is represented on this matter pro bono by Frank Nolan, Andrea Gordon, Caren Pinzur, and Jessica Rodgers at Eversheds Sutherland, LLP.