 ICE has become enough of a household word that, like NASA, it’s no longer necessary to spell out its acronym. ICE’s aggressive enforcement of immigration law, now the nation’s hottest political flashpoint, is dividing Americans like nothing else in recent memory. Regardless of where you stand on ICE and illegal immigration, we should all agree that ICE’s massive expansion into domestic surveillance is a grave concern for anyone who values the Fourth Amendment and privacy. When a protester recording video on her phone wants to know why a masked agent is taking down her information and he replies – “Because we have a nice little database and now you’re considered a domestic terrorist!” – Sheera Frankel of The New York Times rightly suggests that we’ve entered uncharted territory. Political dissent is now being treated as domestic intelligence. The masked agent was not kidding. The Department of Homeland Security (DHS) is launching a pressure campaign to get Big Tech to identify persons who post content deemed “critical” of ICE. Rather than traditional investigative work, the government appears to be leaning on something akin to an abuse of process, filing hundreds – if not thousands – of subpoenas intended to compel tech giants to cough up user data. This data grab of lawful speech is unprecedented. It amounts to using an exceptional legal maneuver – an emergency procedure meant for crimes like child trafficking – to collect constitutionally protected political expression. And let’s be clear about the constitutional claim: The contents of our “friends-only” digital posts are modern “papers and effects,” private possessions the Fourth Amendment was designed to shield from generalized searches. If tech companies cave (and, as highly regulated companies, they likely will), and ICE plugs the data of protesters into its increasingly Orwellian surveillance architecture, then the genie will already be out of the bottle. Once such a capability is developed, it rarely remains confined to a single mission or a single agency. Surveillance tools migrate. Authorities expand. Bureaucracies replicate what works. These tools – algorithms housed in digital fortresses – will almost certainly be shared with the FBI, IRS, FTC, SEC, and a dozen other agencies eager for their piece of the silicon pie. And they won’t just target Americans who are anti-ICE. Depending on the political winds of the day, databases built to track one form of dissent can just as easily be turned against pro-choicers, pro-lifers, critics of the administration in power, progressives, or MAGA supporters. This looks less like law enforcement and more like the construction of a permanent political-intelligence system – the start of a security-state apparatus on a scale never before seen, primarily and perversely used to surveil and catalog the political beliefs of Americans. Congress should examine this emerging capability and look to install guardrails when it debates surveillance policy in March and April. Comments are closed.
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