How Far Will the Government Go in Collecting and Storing All Our Personal Data? New FBI Documents Shed Light on the Answer (Firedog Lake)

How Far Will the Government Go in Collecting and Storing All Our Personal Data? New FBI Documents Shed Light on the Answer

By Sunita Patel, Staff Attorney at the Center for Constitutional Rights and Scott Paltrowitz, Volunteer Attorney at the Center for Constitutional Rights

Supreme Court Justice Stephen Breyer equated GPS surveillance with the ultra-repressive government monitoring in George Orwell’s 1984 this week during the oral argument in United States v. Jones. The case asks whether the use of a GPS tracking device to monitor an individual’s movements without a warrant violates the Fourth Amendment’s ban on unreasonable searches and seizures.  But between the potential to monitor all public movements via GPS and the FBI’s ever-expanding Next Generation Identification(NGI) system, which collects and stores all aspects of our personal physical characteristics– our biometric data – Big Brother is already upon us.

NGI is a massive database program that collects and stores personal identifying information such as fingerprints, palm prints, iris scans, scars, marks, tattoos, facial characteristics, and voice recognition. Data can be collected not only from arrested individuals, but also from latent prints (fingerprints left behind at a crime scene or anywhere else) or through handheld “FBI Mobile” biometric scanning devices. Worse than the FBI accessing all your personal data, when NGI becomes fully operational in 2014, other federal agencies will gain access to the bio-data without your knowledge or consent.

Documents that the FBI turned over only after a Freedom of Information Act (FOIA) lawsuit filed by the Center for Constitutional Rights, the National Day Labor Organizing Network, and the Benjamin Cardozo Immigrant Justice Clinic reveal that the FBI viewsmassive biometric information collection as a goal in itself. The FBI’s Criminal Justice Information Services division (CJIS) has already conducted a test study with latent fingerprints and palm prints, collected more than one million palm prints, scheduled an iris scan pilot program, and plans future deployment of technology nationwide to collect other biometric data like scars, marks, tattoos, and facial measurements. What’s more, the government continues to expand domestic use of FBI Mobile scanners initially used in Iraq and Afghanistan.

The newly-released documents also reveal that not only do the Department of Homeland Security (DHS) and the Department of Justice already have access to this personal information, but so do the Department of Defense, the U.S. Coast Guard, foreign governments, and potentially the Nuclear Regulatory Commission. Indeed, CJIS has information-sharing relationships with more than 75 countries.

This ubiquitous world-wide surveillance of anyone and everyone should serve as a wake up call for what the future may hold. Rapid deployment of the new technologies uncovered in the FOIA records brings us closer to an extensive and inescapable surveillance state, where we blindly place our hands on electronic devices that capture our digital prints, stare into iris scanning devices that record the details of our eyes, and have pictures taken of different angles of our faces so that the FBI and other federal agencies can store and use such information.

Some state and local officials have heavily resisted sharing the fingerprints of non-citizens with immigration authorities, as it can cause community members to fear reporting crime, break up families through unjust detentions and deportations, and lead to law enforcement abuse of authority or racial profiling. Yet the FBI and DHS have prohibited states and localities from placing limits on the FBI’s use of the data. Recently, high-ranking Immigration and Customs Enforcement official Gary Mead was asked by local advocates at a debate in New York why the agency insisted on overriding the governors’ request to prevent federal sharing of immigrant prints. He responded that allowing the FBI to share data with other agencies is the “price of admission” for joining “the FBI club.”  But none of us—those paying the price of having our personal data collected, analyzed, and shared—want the FBI club to indiscriminately share our personal information.

Expanding NGI raises numerous concerns about government invasion of privacy (because of the access, retention, use, and sharingof biometric information without individual consent or knowledge), the widening of federal government surveillance (the NGI database will hold information that can be used to track individuals long into the future), and the increased risk of errors and vulnerability to hackers and identity thieves.

Federal agencies don’t like to admit that they make mistakes, but we know it happens. Take for example Mark Lyttle, a United States citizen who was mistakenly deported and sent to five different countries in four months after a criminal corrections administrator erroneously typed “Mexico” as his place of birth. Or U.S.-born Brandon Mayfield, who was wrongly accused of perpetrating the 2004 Madrid train bombing and was held in police custody for two weeks based on an alleged match between his fingerprints and latent prints from the crime scene, a match that was later deemed inaccurate.

These types of mistakes are even more likely to occur as the FBI relies upon new, questionable physical-trait scanning technologies. One recent study found that when used among large populations, facial recognition will inevitably lead to misidentifications because of the lack of variation across individuals’ faces. Indeed, John Gass of Massachusetts was the victim of facial recognition technology errors when his driver’s license was revoked based on a facial recognition system that determined his authentic and legitimate license was fake.

These disturbing examples will become only more frequent and have more serious consequences as the database grows and more federal agencies and foreign governments join the “FBI club.” The rapid and massive expansion of NGI’s collection, storage, and sharing capabilities is moving us closer and closer to the type of pervasive surveillance referenced by Justice Breyer. We can only wonder, is Orwell’s Thought Police next?

An annotated index of newly released FOIA documents related to NGI and the FBI’s role in Secure Communities, along with the documents, is available at: To read previously released documents related to NGI and a related fact sheet, go to To learn more about Secure Communities and how you can prevent its implementation in your community or state, visit For more information about the case NDLON v. ICE brought by CCR, the National Day Laborer Organizing Network and the Benjamin Cardozo Immigrant Justice Clinic, visit CCR’s case page.

Press Release: New Documents Show Secure Communities Fuels FBI’s Rapidly Expanding Surveillance System While Ignoring States’ Concerns


B. Loewe, National Day Laborers Organizing Network, 773-791-4668
Jen Nessel, Center for Constitutional Rights, 212-614-6449, [email protected]
Sonia Lin, Cardozo School of Law Immigration Justice Clinic, 212-790-0213, [email protected]

New Documents Show Secure Communities Fuels FBI’s Rapidly Expanding Surveillance System While Ignoring States’ Concerns

New Documents on Secure Communities and the FBI’s Next Generation Identification System Show ICE and the FBI Riding Roughshod Over Local Law Enforcement Agencies

November 10, 2011, New York – Today, the Center for Constitutional Rights (CCR), the National Day Laborer Organizing Network (NDLON), and the Cardozo Immigration Justice Clinic released internal government documents concerning the controversial Secure Communities program (S-Comm), newly obtained through a Freedom of Information Act (FOIA) lawsuit.  Advocates say the documents show that S-Comm, already beleaguered with calls for termination, caused serious internal debate within the FBI at the same time that it served as pretext for the agency to rapidly expand its Next Generation Identification (NGI) initiative, which seeks to collect and distribute massive amounts of biometric information on citizens and noncitizens alike.  An annotated index to the documents is available here.

The new documents reveal that FBI Assistant Director Jerome Pender expressed doubts about S-Comm’s effect on the FBI’s relationship with states and localities, and described the FBI’s position in the S-Comm controversy as “being stuck in the middle of a nuclear war.”  Pender wrote:  “I don’t see how we can use [fingerprint] data in a way the owner explicitly bans.  This could cause the whole CJIS model [of information sharing between the FBI and states and localities] to implode.” (Email chain between Deputy Assistant Director of CJIS’s Operations Branch, Jerome Pender, CJIS Assistant Director, Daniel Roberts, Deputy Assistant Director, Stephen Morris, and other FBI officials, May 10, 2011, FBI-SC-FPL-00487-488).

However, the FBI continued to ignore state and local partners’ demands to limit the use of their data and instead continued to press for S-Comm to be mandatory and expanded data sharing to other domestic agencies and foreign governments.

Said Center for Constitutional Rights attorney Sunita Patel, “It is now crystal clear that the FBI is using Secure Communities to experiment on biometric-based surveillance. In pushing for S-Comm and interoperability to be mandatory, the FBI has prioritized collecting personal biometric data on citizens and non-citizens alike for its massive database ahead of the interests of its state and local partners. This is bad policy and no way to operate a federal agency.”

According to the documents, the FBI “recognizes a need to collect as much biometric data as possible . . . and to make this information accessible to all levels of law enforcement, including International agencies.” Accordingly, it “continues to work aggressively to build biometric databases that are comprehensive and international in scope.” (Interoperability Initiatives Unit, FBI CJIS, December 2010, SC-FBI-FPL-1143-1159, at 1143.)

Said Jessica Karp of NDLON, “The rise of the FBI’s surveillance system places all of our civil rights at risk.  As Secure Communities breaks apart the sacred bond of immigrant families, NGI undermines the basic rights we hold as sacred in a democracy. It’s clear that the FBI and ICE’s pursuit of massive personal biometric data collection as a goal in itself tramples on the rights of individuals and states. Secure Communities needs to be ended before more are trapped in its dragnet.”

Said Sonia Lin of the Kathryn O. Greenberg Immigration Justice Clinic of the Cardozo School of Law, “In its support for mandatory S-Comm and push to expand NGI, the FBI has ignored serious concerns about community policing, the burden on local and state partners, privacy rights, and the increased risk of racial profiling.”

Visit CCR’s NDLON v. ICE case page, or the joint website, for the text of the FOIA request, the lawsuit filed in the Southern District of New York, other documents obtained through the litigation and all other relevant documents.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit; follow @theCCR.

The mission of the National Day Laborer Organization Network is to improve the lives of day laborers in the U.S. by unifying and strengthening its member organizations to be more strategic and effective in their efforts to develop leadership, mobilize day laborers in order to protect and expand their civil, labor and human rights. Visit

The Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law was founded in 2008 to provide quality pro bono legal representation to indigent immigrants facing deportation. Under the supervision of experienced practitioners, law students in the Clinic represent individuals facing deportation and community-based organizations in public advocacy, media and litigation projects. Visit

Supervisors ask sheriff to examine Secure Communities (Santa Cruz)

Supervisors ask sheriff to examine Secure Communities
Concerns raised over use of jail space, fairness of program

By TOVIN LAPAN – Santa Cruz SentinelPosted: 10/25/2011 06:53:39 PM PDTUpdated: 10/25/2011 06:59:11 PM PDT

SANTA CRUZ – In response to reports on the efficacy of the Secure Communities program and concerns about the expansion of the federal immigration initiative, the Santa Cruz County Board of Supervisors voted unanimously Tuesday to instruct the Sheriff’s Office to produce a report on how the program can best be managed locally. Supervisor Greg Caput introduced the item, which specifically referenced Santa Clara County, where supervisors have instructed law enforcement to only honor a detention request from Immigration and Customs Enforcement if the person has been convicted of a serious or violent felony within the past 10 years, or if the person has ever been convicted of a homicide.

Santa Clara County also stipulated that no one under the age of 18 will be detained.

“I trust our sheriff and I trust his discretion,” Caput said. “But I don’t trust every sheriff and I don’t trust ICE … I think if we clarify what the sheriff can do and establish parameters it will make his job easier.”

Initiated in 2008, Secure Communities’ stated goal was to snare violent illegal immigrants by allowing Immigration and Customs Enforcement officials access to arrest information from local jails. The Department of Homeland Security may ask local officials to hold an inmate, who is then picked up by the federal immigration officials.

A report published this month by the UC Berkeley School of Law’s Warren Institute found that 1.6 percent of those detained through the program were U.S. citizens, 67 percent were non-criminal or low-level offenders and 93 percent of detainees under Secure Communities are Latinos, while it is estimated that 77 percent of illegal immigrants are Latinos.

“It’s institutionalized racial profiling in its base form,” said Steve Pleich, a community activist who supported the board’s action. In the past year 149 people in the Santa Cruz County Jail have had immigration holds placed on them, Sheriff Phil Wowak said. The supervisors also raised concerns that the detainees were occupying beds that are desperately needed for state inmates being transferred back to local jails in order to alleviate overcrowding.Of all those deported from Santa Cruz County through the program, 44 percent had never been convicted of a crime.

“It’s shocking when you see statistics about the people detained who haven’t committed a crime,” Supervisor John Leopold said. “States that take a tough stand on immigration lose a big part of their workforce and can’t replace them.”

States such as Colorado, Arizona and Alabama have passed strict immigration laws in the past few years and seen subsequent drops in the amount of labor available for farm work and other low-wage jobs. In some cases crops were left to rot in the fields.

“We never get information on why the person has been detained,” Wowak said. “We just know it’s for ICE. The path to take might be to determine why are they being detained, and if they are actually dangerous offenders in the community.”

In Santa Clara County the county jail is directly accountable to the supervisors, but in Santa Cruz the jail is operated by the elected sheriff, and is autonomous from the supervisors.

Despite that structure, Caput wanted to pursue similar measures to the ones Santa Clara took.The board asked that Sheriff Wowak present the report at its Dec. 6 meeting.

County leads U.S. in deportation of non-criminals (Monterey County)

County leads U.S. in deportation of non-criminals

Confusion over who has final say under Secure Communities program


Most immigrants detained and deported in Monterey County under a controversial federal enforcement program have committed no crimes, federal statistics show.

The county has a higher percentage of such cases than other California counties and the U.S. as a whole.

A total of 889 people from Monterey County were detained and deported through the Secure Communities program between April 2010 and August 2011.

The Department of Homeland Security’s deportation program requires state and local law enforcement agencies to share fingerprints of people they detain with U.S. Immigration and Customs Enforcement, or ICE.
According to ICE, 463 people sent back to their country of origin from Monterey County — 53 percent — were undocumented immigrants convicted of no crimes.

By comparison, Santa Cruz County deported 176 immigrants, 76 of whom were not criminals. That’s 42 percent. Santa Clara County deported 972 immigrants, of which 209, or 22 percent, were not criminals.
In California, 29 percent of those deported under Secure Communities had no criminal record. Overall U.S. deportations showed 20 percent with no criminal record.

Voluntary to mandatory
The Secure Communities program, first billed as voluntary, became mandatory in August and has been under fire by immigrant rights organizations nationwide. They say the program was supposed to target criminals but has been used unevenly and without oversight.

“The pattern in Monterey County is even worse” than the rest of California, said Paul Johnston of the Santa Cruz County Immigration Action Group. “Secure Communities is supposed to be information sharing so ICE knows who’s in your jail, but it’s up to jurisdictions who they are going to send back.”Jeff Budd, chief deputy of corrections at Monterey County Jail, said the decision on who gets deported is up to Immigration and Customs Enforcement, not Monterey County.

“It’s all handled by ICE,” he said. “It’s a federal thing.”

People who overstay their visas, people who attempted to cross the border illegally and got caught, people who were asked to report for deportation proceedings but never did — these are the types of immigration “holds” that will raise a flag in Monterey County and prompt an ICE enforcer to take a second look.

Detainees on an immigration hold can remain in Monterey County Jail for up to 100 days, Budd said.

But it’s not up to Immigration and Customs Enforcement officers to decide who goes back, said spokeswoman Virginia Kice.

“ICE does not make the final decision as to whether an alien will be deported,” Kice said in an email. “We simply file the paperwork that puts a potentially deportable alien into removal proceedings. The immigration case is then heard by an administrative law judge with the Executive Office for Immigration Review.” That office is a part of the U.S. Department of Justice.

Rights groups critical

Secure Communities has been the target of criticism from immigrant rights advocates and civil rights groups, who claim ICE imposed the program unilaterally and that it is used largely to detain low-level criminals and non-criminals. Among the criticisms is that ICE does not reveal the name of the people detained and deported under Secure Communities.

A coalition sued five federal agencies last year to obtain information about the program, claiming the system was not going to have sufficient transparency.

On Monday, a federal judge in New York ordered the release to the coalition of a key document that is expected to show why the U.S. made the program mandatory, the Washington Post reported.

Adding fuel to the fire, a recent report by the UC Berkeley School of Law’s Warren Institute found that 1.6 percent of people detained through Secure Communities were U.S. citizens, and 67 percent were non-criminal or low-level offenders.

According to the report, 93 percent of detainees are Latinos, though it is estimated that 77 percent of undocumented immigrants are Latinos.

The report found that 52 percent of people arrested through Secure Communities were scheduled to have a hearing before an immigration judge.

Santa Clara County supervisors approved a program last week that will limit their cooperation with ICE by requesting reimbursement from the federal government when asked to detain an immigrant and by agreeing to detain only people who committed certain violent crimes.

This week, Santa Cruz County supervisors asked the sheriff to review participation in Secure Communities.

Claudia Meléndez Salinas can be reached at 753-6755 or [email protected]