Surveying Surveillance

The federal government is compiling a report on law enforcement’s abuse of surveillance technology. We’re pushing to ensure they don’t neglect their own offenses.

Jan 18, 2024

Spurthi Kontham

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Surveying Surveillance

One of President Joe Biden’s biggest promises on his first campaign trail was to reform policing in America, in response to nationwide protests following the murder of George Floyd on May 25, 2020. Two years later to the day, President Biden issued an executive order aiming to understand and reform law enforcement practices.

Part of the executive order calls on the Attorney General and the Secretary of the Department of Homeland Security (DHS), among other agencies, to develop an interagency report on law enforcement’s use of facial recognition, biometric data collection, and predictive algorithms. This is an area POGO has done a lot of work on, and we were asked to submit a public comment on our concerns about these technologies. The comment will be published on our website tomorrow.

For today’s edition of The Bridge, I asked my colleague, Don Bell, Policy Counsel for The Constitution Project at POGO, to explain what points we’re hoping to get across in the public comment.

But first, some context:

What is a public comment?

Any newly proposed agency rule or regulation is required by law to go through a notice and comment period, where the public — everyone from private citizens and research centers to nonprofits like us — has a window of opportunity to make their comments and concerns heard. It’s a crucial process for transparency and democratic participation. For the interagency report, this was a slightly more informal process — they directly reached out to civil society groups like POGO for comments as they develop the forthcoming report.

Casting a wider net

Given the context in which the executive order was issued, it may seem like the “law enforcement” under scrutiny are police officers. But “law enforcement” is actually a large umbrella — and it’s crucial that the forthcoming report accounts for all the entities that fall under that umbrella.

“We were particularly interested in submitting a comment because two of the largest law enforcement agencies within the country — Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) — are within the Department of Homeland Security, which is part of the interagency group that is commissioning the report,” Don told me. “CBP and ICE’s focus on paper is immigration, but they engage in law enforcement activities as well, as do other quasi-law enforcement agencies across DHS. We wanted to make sure they weren’t neglected, because they are amongst the most prolific users of this technology.”

An executive summary

The use of facial recognition software, iris scanning, and even DNA collection has dramatically expanded at DHS over the years. Seven out of the nine agencies and offices that make up DHS (and several quasi-agencies, like the Secret Service and the Transportation Security Administration) engage in some sort of collection or use of biometric data. DHS claims to use these tools to identify travelers, develop leads, and assist in criminal investigations. But without proper guardrails in place, mission creep could seamlessly create opportunities for these tools to be abused in violation of people’s privacy and civil rights — especially migrants and other marginalized groups.

Specifically, given the overbroad and unchecked authority of CBP and ICE, use of these technologies by DHS is all the more concerning and deserving of scrutiny.

“It is absolutely essential that this report includes a close look at how CBP and ICE in particular are using surveillance technology. If they’re left out, the executive order would be ineffective at achieving its goals of coming to a true understanding of how these technologies threaten civil rights and civil liberties,” Don told me.

Don also noted that DHS isn’t the only federal agency that needs to be accounted for in this report. Several entities under the Department of Justice also employ facial recognition technology and collect DNA — including the FBI, the Federal Bureau of Prisons, and the Drug Enforcement Administration.

The forthcoming interagency report into law enforcement’s use of surveillance technology poses a unique opportunity to deeply examine and understand these new tools that have been deployed too quickly and too broadly, without a proper reckoning of the dangers they pose. With meaningful reform on the table, it’s crucial that the government commits to a full examination of the uses and potential abuses of surveillance technology — and that means turning a critical lens on itself, as well.