Immigration bill would ramp up mass surveillance at the border

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Senate Republicans dropped a massive immigration bill just before leaving for summer recess. A copy of the nearly 200-page Building America’s Trust Act, as it’s known for short, was provided to Foreign Policy. If passed, the bill, sponsored by Sen. John Cornyn, R-Texas, would expand surveillance powers at the border by increasing the number of Customs and Border Patrol agents, encouraging American law enforcement to collect and store more biometric data, and creating a plan to install drones along the border.

“We are going to have some legislation that provides a plan that deals not just with individual pieces of infrastructure but a border-wide plan that involves a lot of work from both sides of the aisle and both sides of the Capitol,” Cornyn told the Washington Examiner last week.

For proponents of increased security at the border, the bill will be a welcome measure, while privacy and civil liberties advocates are likely to object to a majority of its provisions. It will also probably face an uphill battle on Capitol Hill.

Some of the provisions included would increase the powers of border agents and airport security employees. For example, the bill would encourage Customs and Border Control to implement a system to use facial recognition technology “to the greatest extent practicable . . . inspect travelers at United States airports of entry.”

Within two years, the 15 most internationally trafficked airports, seaports, and land ports would be required to develop a “biometric exit data system” to “match biometric information for an alien who is departing the United States against the biometric information obtained for the alien upon entry to the United States.”

A Cornyn aide clarified that there is no provision “requiring” facial recognition technology.

Cornyn’s bill also calls for the Department of Homeland Security to ramp up its use of manned aircraft and drones “along the United States border” for “continuous surveillance.” The bill doesn’t specify if the entire southern border region, including highly populated areas, would be subject to such constant monitoring but if enacted the legislation would give the homeland security secretary broad authority to do so at will.

“These authorities are subject to existing law/regulatory limitations – there is no provision waiving them,” the Cornyn aide wrote in an email. “CBP is already doing this, we just require them to continue doing it. All of these technologies are conventional and currently deployed. Drones, aerostats, surveillance planes, etc.”

The bill encourages the department to examine its use of surveillance technology, or “deploy the most practical and effective technology available along the United States border for achieving situational awareness and operational control of the border.”

Unmanned aerial surveillance should take place for no less than 24 hours a day, five days a week, the bill states. In San Diego, the bill mandates “subterranean surveillance and detection capabilities” in addition to other specific tools. In areas where there are bodies of water or dams and culverts, the bill calls for additional maritime surveillance technology and sensors to fill surveillance holes.

Additionally, if the bill passes in its current form, the head of the Department of Homeland Security would be required to prepare a “threat analysis” of the southern border within 180 days and provide the report to Congress. The assessment would include “current and potential terrorist threats,” as well as data on people trying to enter the country illegally, or hoping to “exploit” security flaws along the border.

The text of the new bill would also encourage the Department of Homeland Security to implement reviews of social media accounts of visa applicants from citizens of “high-risk countries” designated at the discretion of the secretary. Currently, DHS can get “voluntary” access to social media information from travelers; “it just allows DHS to view the social media information,” the Cornyn aide wrote.

Also inserted into the text is a resurrected version of the Stop Dangerous Sanctuary Cities Act, which would penalize local law enforcement officers for failing to pass information about undocumented immigrants to federal authorities working to deport them.

Two similar bills passed the House in late June, though they were met with resistance in the Senate. President Donald Trump has taken to Twitter to endorse that legislation.

Opponents of the bill have suggested the effort to eliminate sanctuary cities is part of an anti-immigrant agenda, as immigration rates might not actually have the impact on crime Trump and his supporters suggest it does.

James Norton, a former deputy assistant secretary of homeland security under President George W. Bush, told FP the plan would be difficult to implement. “The biometric portion of the legislation alone is easily a multibillion-dollar initiative for DHS to undertake,” he said. “The timelines that are suggested in the legislation are not realistic and it’s unclear how they would align” with the spending bills moving through Congress.

“Is this going to be a multibillion-dollar supplemental?” he asked.

Another former Department of Homeland Security official told FP that the plan would be a “real breakthrough” in helping border patrol do its job – but that it might not be practical, and could run into major roadblocks. “A persistent intelligence picture allows us to do real-time analysis and risk assessment along the entire border as opposed to a few sectors,” the official wrote in an email. “But we must also be concerned about what other countries may demand of our citizens who travel and how that privacy sensitive material is secured”

It would be a challenge, the official continued, to fully protect privacy and civil liberties under the plan. “The ideas are great, the implementation challenges significant.”

Jake Laperruque, senior counsel for the Constitution Project, was even more critical. “This bill is a mass surveillance expansion – including surveillance of lawful immigrants and American citizens – masquerading as border security,” he wrote in an email to FP.

It’s not totally clear just where President Trump’s proposed border wall fits into the scenario, though the bill does instruct the DHS secretary to implement necessary “tactical infrastructure” – potentially including a wall, a boat ramp, or a fence – by 2021.

Meanwhile, President Trump has yet to nominate a new secretary of homeland security to lead the implementation of federal immigration policy. The department was previously led by Lt. Gen. John Kelly, who recently replaced embattled former Republican National Committee Chair Reince Priebus as Trump’s chief of staff. Elaine Duke, formerly Kelly’s deputy, is currently the acting secretary.