U.S. Officials Deploy Technology to Track More Than 200,000 Immigrants, Triggering a New Privacy Lawsuit

More than 216,000 people with pending cases before U.S. immigration courts have been placed in a federal government tracking program, according federal data released April 14. Since President Joe Biden took office, the number of immigrants in the Alternatives to Detention (ATD) program has more than doubled, reflecting the Administration’s embrace of new surveillance technology as a tool to limit reliance on government-funded detention centers.

While immigrant advocates have long called on U.S. Immigration and Customs Enforcement’s (ICE) to reduce or end the use of immigrant detention centers, they say the ATD program raises a fresh set of concerns about immigrants’ privacy and civil rights. On April 14, three immigrant advocacy organizations—Just Futures Law, Mijente, and Community Justice Exchange—filed a lawsuit against ICE, calling on the agency to provide information showing what data are being collected on individuals in the ATD program, and how that data are used, either by the government or by the for-profit contractors that operate the technology.

“Policing and enforcement in immigrant communities has shifted in the last years to really depend more and more on tech and data companies,” says Jacinta Gonzalez, senior campaign director at Mijente. “ICE will call it an ‘alternative to detention’ even though we know that it’s really sort of an extension of the detention system.”

In the days after Biden took office, 86,860 people were monitored through ATD. On April 9, that number was 216,450. Roughly 75% of those enrolled in the program are supervised through an app called SmartLINK, which uses facial and voice recognition, and GPS tracking. SmartLINK was designed by BI Incorporated, a subsidiary of GEO Group, the largest private prison company in the U.S. ICE began using SmartLINK in 2018, during the Trump Administration. The Biden Administration has significantly increased usage of the app, according to a data analysis by the Transactional Records Access Clearinghouse (TRAC), a research organization at Syracuse University.

As the number of immigrants monitored under ATD has ticked up, the number in ICE detention centers has declined. But it’s not a direct one-to-one correlation, says Austin Kocher, assistant professor and researcher at TRAC. The number of immigrants in ATD has expanded, while the number of people in immigrant detention facilities has fluctuated, he says. “[ATD] is more of a mechanism for [ICE] to expand their ability to monitor immigrants who are in the country,” Kocher says. “So we don’t necessarily expect the detention numbers to go down just because Alternatives To Detention is increasing.” Since the start of the Biden Administration, the number of immigrants in ICE detention centers has ranged from a high of 27,217 and a low of 13,258. It’s currently above 18,000.

An ICE spokesperson would not comment on the new litigation, and issued a statement saying that a “lack of comment should not be construed as agreement with, or stipulation to, any allegations.” The spokesperson added that the agency is committed to protecting privacy rights, and the civil rights and liberties of those in the ATD program. GEO Group declined to comment on the record about either ATD or SmartLINK and referred TIME to ICE.

What is ICE’s Alternative to Detention Program?

The record number of people now enrolled in ATD make up a relatively small portion of the millions of immigrants who are not detained by ICE. In August 2020, more than 3.3 million people were on ICE’s non-detained docket. That number includes asylum seekers, those who have received a deportation order, and those have a pending case before U.S. immigration court.

Still, the rapid expansion of the ATD program has immigrant communities and advocates sounding the alarm. The program allows the government to track immigrants with a variety of different technologies, including ankle monitors with GPS tracking, “telephonic reporting,” or by use of the SmartLINK app, which is either installed on a personal smartphone or installed on a locked device. ICE first used SmartLINK in 2004 to track a small subset of undocumented immigrants who were not in detention.

Sejal Zota, co-founder and legal director at Just Futures Law, calls the program “a digital prison.” She says immigrants monitored under ATD are asked to follow different, and sometimes inconsistent, protocols. Some immigrants must answer their phone anytime they receive a call on the SmartLINK app. Others have to send photos of themselves indicating their location. And others must periodically check in with a SmartLINK officer and an ICE officer, she says. This costs immigrants in ATD an average $7.29 per day, according to ICE.

“It has been described as like a constant harassment. People feel like they are criminals, they feel like they’ve been sentenced,” says Zota.

Immigrants who are in detention or in the ATD program are awaiting civil proceedings; they are not in the criminal justice system. They are not serving a sentence after being found guilty of a crime. According to TRAC data, nearly 70% of immigrants currently detained by ICE have no criminal record. It is unclear how many of those in ATD also have no criminal record.

“[ATD] is not a substitute for detention, but allows ICE to exercise increased supervision over a portion of those who are not detained,” according to the ICE website. SmartLINK can also connect immigrants with community services like food banks, according to ICE.

For the immigrant advocates who have filed suit against ICE, the bigger issue is how immigrants’ data is being harvested and utilized by GEO Group, a for-profit company. “[GEO Group is] trying to figure out ways to pivot to continue to make profit off of the detention and deportation system,” says Gonzalez at Mijente. “So we’re gonna continue to be part of this lawsuit until we can get some basic information to understand how people’s most personal data, their biometric information, is being used by private companies and the government in this moment.”