May 10, 2019

Udall, Warren, Harris, & Blumenthal to DHS: Stop Unconstitutional Surveillance of Journalists, Activists, and Lawyers

Senators demand answers from Acting Secretary McAleenan about CBP’s program to target and monitor individuals reporting on or providing assistance to migrants at the border

WASHINGTON – Today, U.S. Senators Tom Udall (D-N.M.), Elizabeth Warren (D-Mass.), Kamala D. Harris (D-Calif.) and Richard Blumenthal (D-Conn.) wrote to U.S. Department of Homeland Security (DHS) Acting Secretary Kevin K. McAleenan demanding answers on reports of targeted government surveillance of journalists, activists, and lawyers at the U.S.-Mexico border by Customs and Border Protection (CBP) – an attack on the First Amendment and a potential violation of the Privacy Act of 1974. 

In early March, the Trump administration reportedly compiled a secret database of immigration advocates and journalists covering immigration issues, the majority of whom were U.S. citizens, who were then subjected to additional scrutiny by CBP when crossing the U.S.-Mexico border. Additionally, recent reports reveal that DHS contracted with a private intelligence firm, LookingGlass Cyber Solutions, to gather information on over 600 peaceful demonstrations organized last summer in response to the Trump administration’s cruel and horrific policy of family separation – information that was then shared with DHS and distributed to outside law enforcement officials.

“This kind of government surveillance, including of U.S. persons, is particularly troubling when it targets journalists and those providing legal services to migrants, as well as those who protest the Trump Administration’s immigration policies at the US-Mexico border, such as child separation,” the senators wrote. “Recent reports indicate there are ongoing efforts to expand the collection and retention of social media data under the pretense of enhancing ‘situational awareness’ and without appropriate limits consistent with the Constitution. This practice creates great risk of abuse of that information, such as using it to discourage advocacy contrary to the interests of the administration.”

In their letter, Udall, Warren, Harris, and Blumenthal, who all visited the southern border at the height of the family separation crisis engineered by the Trump administration last summer, raised serious concerns over how these alarming surveillance practices jeopardize constitutional rights protected by the First Amendment, including freedom of the press, speech, and association.

“The American people expect DHS to help keep our communities safe from violent attacks, not keep lists of journalists and attorneys to harass at legal ports of entry, or track and disseminate information about public protests of DHS child separations,” they continued. “Even the appearance of targeting on the basis of protected expression can have a severe chilling effect on protected speech and raises serious constitutional concerns. Surveillance that collects personally identifiable information of activists, journalists, lawyers, that results in undue questioning and warrantless searches undermines the freedoms of speech, press, and association, and violates constitutional rights.”

“The Administration’s surveillance practices and targeting of individuals providing legal services to migrants and journalists, as well as those who protest the Trump Administration’s immigration policies at the US-Mexico border, such as child separation, are beyond alarming and demand an immediate course correction,” the senators concluded.

The senators requested responses to a series of important questions and requests for documents by May 24, 2019, including: whether the administration’s surveillance activities were politically motivated; agency materials governing DHS conduct when creating records of U.S. citizens; and detailed information on the extent to which CBP or its contractors accessed non-public information on individuals.

Organizations like the American Immigration Lawyers Association (AILA) and the Center for Democracy and Technology have voiced concern over surveillance of lawyers, advocates and journalists who have opposed the administration’s immigration policies. 

“The government’s targeting and monitoring of immigration attorneys will almost certainly deter and prevent attorneys from reaching their prospective clients seeking asylum. Legal representation in immigration proceedings is instrumental for those seeking protection from persecution and immigration attorneys must be permitted to represent clients without fear of governmental interference or retaliation,” said Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA).

“The Senators’ letter pulls together an eye-popping array of instances in which DHS targeted people who dissent from government immigration policy or who expose government abuse at the border.  A disturbing pattern emerges:  Is DHS using its enforcement powers to squelch advocacy of immigrants’ rights?" asked Greg Nojeim, Director of Freedom, Security and Technology Project at the Center for Democracy & Technology.

The full text of the letter is available below and HERE. 

Mr. Kevin K. McAleenan
Acting Secretary
U.S. Department of Homeland Security
3801 Nebraska Ave. NW
Washington, D.C. 20016 

Dear Acting Secretary McAleenan,

I write to draw your attention to profound concerns about Customs and Border Protection’s (CBP) Social Media Monitoring and Situational Awareness Initiative and other Department of Homeland Security (DHS) programs and initiatives which may be used to collect sensitive personal information on U.S. persons. This kind of government surveillance, including of U.S. persons, is particularly troubling when it targets journalists and those providing legal services to migrants, as well as those who protest the Trump Administration’s immigration policies at the US-Mexico border, such as child separation.

Recent reports indicate there are ongoing efforts to expand the collection and retention of social media data under the pretense of enhancing ‘situational awareness’ and without appropriate limits consistent with the Constitution. This practice creates great risk of abuse of that information, such as using it to discourage advocacy contrary to the interests of the administration. And in fact we already see reports of abuse of this information to monitor and harass individuals critical of DHS and its agencies or attorneys representing the targets of DHS enforcement actions. Furthermore, there is a risk that DHS is engaging in conduct that would violate the Privacy Act of 1974. A government agency cannot create records of U.S. citizens and lawful permanent residents’ First Amendment activities when those activities are not pertinent to and within the scope of its authorized law enforcement activity.

In early March, a local television report revealed the existence of a CBP list of 59 individuals referred to as suspected “organizers, coordinators, lawyers, instigators, and media,” 40 of whom were identified as US citizens. There would appear to be no legitimate basis for CBP to develop a list of individuals, including journalists and attorneys, in order to specifically target them for enhanced inspection at ports of entry based on their perceived association with asylum-seekers. 

Sadly, there is strong reason to believe that this incident is not an isolated deviation from CBP practice but a predictable consequence of a broader policy aimed at the collection and monitoring of constitutionally protected speech and activities when the government disagrees with them. In another shocking development, recently revealed documents show that the DHS Office of Intelligence and Analysis received and distributed information from a private intelligence firm that documented more than 600 demonstrations across the country protesting DHS’s child separation policy.That information was then shared with intelligence fusion centers across the country making it available to federal, state and local law enforcement entities, raising additional privacy and First Amendment concerns considering the vast amount of data collected by participating entities and shared and analyzed at the fusion centers, with a high level of secrecy and little oversight. Additionally, in the summer of 2018, Immigration and Customs Enforcement created a spreadsheet labeled as “Anti-Trump Protests” with information on protests in New York City, noting the groups sponsoring them and suspected political motivations.This information—about U.S. persons protesting a cruel child separation policy which the President himself publicly reversed—appears to have been gathered in ways that are outside of accepted data collection practices.

The American people expect DHS to help keep our communities safe from violent attacks, not keep lists of journalists and attorneys to harass at legal ports of entry, or track and disseminate information about public protests of DHS child separations. Even the appearance of targeting on the basis of protected expression can have a severe chilling effect on protected speech and raises serious constitutional concerns. Surveillance that collects personally identifiable information of activists, journalists, lawyers, that results in undue questioning and warrantless searches undermines the freedoms of speech, press, and association, and violates constitutional rights.

We urge you to direct your personal attention to these matters and bring about a stop to any and all DHS activity that impedes constitutionally-protected speech, including the free press, and access to legal services.

To better understand these activities, and to inform the public, we request timely and substantive responses to the following questions by May 24, 2019:

• Is DHS monitoring journalists, lawyers, activists, and media personnel based solely or in part on their association with asylum-seekers, opposition to family separation, or participation in protests related to asylum-seekers or family separation policies?

• What is DHS doing to ensure that its investigative officers are acting in accordance with privacy laws such as the Privacy Act of 1974 or other regulations and internal policies? 

• Disclose investigative guidelines, handbooks, and criteria that govern DHS components’ conduct as it relates to creating records of U.S. citizens and lawful permanent residents’ First Amendment activities when those activities are not pertinent to and within the scope of its authorized law enforcement activity; Disclose any legal analysis of the agency’s authority to engage in this conduct under the Constitution, or applicable statutes and regulations. 

• What specific assurances can DHS provide to demonstrate that border screening enforcement and surveillance conduct is not politically motivated? Does DHS conduct similar monitoring and screening action against right wing or anti-immigration figures, or only of those whose actions are sympathetic to asylum seekers or protesting DHS policies like child separation?

• What is the current scope of DHS’s social media collection program regarding journalists, activists, protestors, and attorneys who are not under suspicion of committing a crime? What is the process, if any, for approving the use of search terms that could result in the collection and retention of social media information under this program? What is the basis for each search term? What steps are taken to ensure that search terms are tailored to identify actual threats while limiting any burden on free speech?

• Provide detailed information on the extent CBP, or its contractors, accessed non-public information, either online or otherwise, when creating the list of 59 individuals referred to as suspected “organizers, coordinators, lawyers, instigators, and media,” or family separation protestors? Did CBP, or its contractors, create or use fake personas or use other tactics in order to access information that is not available to the public?

• What policies or guidelines cover DHS’s use of private intelligence contractors in situations like this and what tools does DHS itself use to monitor open source and social media information on protestors, activists, journalists and attorneys? 

The administration’s surveillance practices and targeting of individuals providing legal services to migrants and journalists, as well as those who protest the Trump Administration’s immigration policies at the US-Mexico border, such as child separation, are beyond alarming and demand an immediate course correction. We look forward to your timely response to these questions. Thank you for your prompt attention to this matter. 

Sincerely,