A prominent digital rights advocacy organization and the Harvard Cyberlaw Clinic are suing federal authorities for failing to produce documents outlining how they share biometric and other noncitizen data with some Latin American governments.

The plaintiffs said Thursday they filed Freedom of Information Act (FOIA) requests with Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) more than 17 months ago. 

The advocacy organization, Access Now, and the Cyberlaw Clinic said CBP has not provided any of the requested documents. ICE told Access Now and Harvard that it does not have any of the sought documentation for a biometric database that it controls.

The lawsuit against ICE focuses on its Enforcement and Removal Operations (ERO) program, which the agency’s website has called a “notable coordination and partnership” effort focused on the “biometric and biographic identification of priority undocumented individuals who are incarcerated within federal, state, and local prisons and jails,” according to the lawsuit.

ERO manages the apprehensions, arrests, detentions and removals of noncitizens already in the U.S.

Through ERO, ICE has signed cooperation agreements with the Mexican, Guatemalan and other foreign governments going back to 2010, according to its website. Access Now’s FOIA request sought the full text of data sharing agreements forged between ICE and Mexico, Guatemala, Honduras and El Salvador. 

The CBP lawsuit similarly focuses on its refusal to turn over documents requested under FOIA law, but homes in on the agency’s controversial CBP One app. The portal is the only way for migrants to make appointments with the agency and obtain other services, but it requires their biometric information.

CBP One is currently being investigated by both the Department of Homeland Security’s Office of Inspector General and its Office for Civil Rights and Civil Liberties.  According to an internal CBP One privacy impact assessment cited by the lawsuit, the app can collect biographical information, images and geolocation.

In February CBP disclosed on the Federal Register that the app also will begin gathering biometric information from nonimmigrants leaving the country. They will be required to provide photos with geolocation data to prove they have left.

Access Now alleges that CBP One can use the data it gathers for automated decision making, profiling and “registering people on the move.” It is seeking a variety of relevant records documenting how the app functions and the number of people in the Mexican, Guatemalan, Honduran and El Salvadoran governments who access CBP One to obtain data about migrants.

CBP and ICE did not respond to a request for comment.

Lessons from the helpline

Access Now is particularly connected to the experience of undocumented immigrants in part because it maintains a Helpline designed to provide them technical assistance.

The advocacy group said the experience of real world migrants informed its efforts to collect more information on ICE and CBP’s data sharing arrangements with Latin American governments as well as details about the biometric databases they maintain.

Access Now has deeply researched the experience of Salvadorans who have allegedly been wrongly detained and declared to be criminals upon entering the U.S. due to inaccurate data collected by their government. Last June it appealed to the Office for Civil Rights and Civil Liberties to investigate. DHS houses CBP and ICE.

In March of 2022, El Salvador enacted an emergency measure meant to control gangs, giving its National Police unprecedented authority to arrest people without any accountability, according to Access Now.

Individual stories of Salvadorans who have been swept up and criminalized by the American immigration apparatus have been a focus for the advocacy group, which has uncovered several cases where inaccurate data from the Salvadoran government has led noncriminals to be arrested and indefinitely detained by the U.S. government.

Access Now’s report on El Salvador notes that the Department of State’s 2022 Human Rights Report found credible allegations of significant rights abuses by the Salvadoran National Police. Those abuses allegedly include forced disappearances and arbitrary arrests often made for personal reasons.

The data swapping agreement between the U.S. and Salvadoran governments has led the U.S. to wrongly criminalize Salvadoran migrants, Access Now says.

“DHS obtains information from a growing number of foreign sources, including through data-sharing agreements with governments that have a history of violence toward their own citizens, such as El Salvador,” Access Now’s synopsis of its call for an investigation said. 

It added that its complaint filed with DHS targets agreements between the U.S. and El Salvador, “highlighting how they have allowed a steady stream of unsubstantiated information to enter the databases used for U.S. immigration proceedings.”