EFF to UN Expert on Racial Discrimination: Mass Border Surveillance Hurts Vulnerable Communities

EFF submitted a letter to the United Nations’ Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to testify to the negative impacts of mass surveillance on vulnerable communities at the U.S. border. The Special Rapporteur called for submissions on “Race, Borders, and Digital Technologies” that examine the harmful effects of electronic surveillance on vulnerable communities and free movement at the border. These submissions will inform the Special Rapporteur’s 2020 thematic report to the U.N. General Assembly about how digital technologies used for border enforcement and administration reproduce, reinforce, and compound racial discrimination.

Ms. E. Tendayi Achiume was appointed the 5th Special Rapporteur on contemporary forms of racism, racial discrimiantion, xenophobia and related intolerance in 2017. In the United Nations, Special Rapporteurs are independent experts appointed by the U.N. Human Rights Council who serve in a personal capacity and report on human rights from a thematic or country-specific perspective. Special Rapporteurs also report back annually to the U.N. General Assembly (which is made up of 193 Member States). With the support of the U.N. Office of the High Commissioner on Human Rights, Special Rapporteurs undertake country visits, intervene directly with States on alleged human rights violations, and conduct thematic studies like this report.

In our submission, we explained that EFF has spent the last several years expanding our expertise in mapping, litigation, research, and advocacy against the use of digital surveillance technologies at the U.S. borders. The Atlas of Surveillance: Southwestern Border Communities project, published in partnership with the Reynolds School of Journalism at the University of Nevada, Reno, found that dozens of law enforcement agencies along the U.S.-Mexico border use biometric surveillance, automated license plate readers, aerial surveillance, and other technologies that not only track migration across the border, but also constantly surveil the diverse communities that live in the border region.  

Litigation is one tool EFF has used to fight back against invasive surveillance at the border and the government secrecy that hides it. In our case, Alasaad v. Wolf, we worked with the national ACLU and ACLU of Massachusetts to challenge the government’s warrantless, suspicionless searches of electronic devices at the U.S. border. We argued that warrantless border searches of electronic devices constitute grave privacy invasions because of the vast amount of personal information that can be revealed by a search of an individual’s electronic devices such as smartphones and laptops. In November 2019, a Massachusetts federal district court held that the government must have reasonable suspicion that an electronic device contains digital contraband in order to conduct a border search. While not the warrant standard that we had argued, the court’s ruling is the most rights-protective decision in the country on searches of electronic devices at the border. Alasaad is currently on appeal in the U.S. Court of Appeals for the First Circuit. In addition, EFF has two ongoing Freedom of Information Act (FOIA) lawsuits regarding the border, one on GPS tracking at the border, and the other on Rapid DNA testing of migrant families at the border. 

Our letter also highlights EFF’s successful advocacy with the California Attorney General’s Office to classify immigration enforcement as a form of misuse of the California Law Enforcement Telecommunications System (CLETS). As a result of this change in policy, U.S. Immigration and Customs Enforcement (ICE) was altogether barred from using CLETS.

We hope that our submission adds to the United Nations and the larger international community’s understanding of the vast surveillance systems being set up and deployed at the U.S. border, and the disproportionate impact of these technologies on vulnerable communities.