by CDT intern Emma Li.
The Department of Homeland Security (DHS) has withdrawn a proposed rule that would have adversely impacted privacy and free expression rights by dramatically expanding the collection of biometric information by the United States Citizenship and Immigration Services (USCIS). In September 2020, DHS published the proposed rule, entitled “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services” (DHS Docket Number USCIS-2019-0007).
The rule would have expanded the types of biometrics USCIS collects and the people from whom they would be collected, to include people associated with immigrants, such as their sponsors. CDT, along with other commentors, opposed the proposed rule and urged DHS to withdraw it. On May 10, 2021, DHS did just that.
Implications of the Proposed Rule
DHS’s proposed rule would have expanded the scope of the biometric information it collected. USCIS currently collects some biometrics information (photographs, fingerprints, and signatures), but this rule would have authorized iris scans, facial images for facial recognition, palm prints, and DNA test results in some instances to prove the existence of a familial relationship.
The proposed rule also would have given the government significant authority to intrude upon the privacy of many more U.S. and non-U.S. citizens. The rule would have increased the population from whom DHS could seek sensitive personal information by over 50%, from 3.9 million people to 6.07 million people. Not only would immigrants have been subject to biometrics data collection, but “any individual filing or associated with an immigration benefit or request” would have to provide biometrics information as well. This could include people who sponsor immigrants to the U.S., including their families or friends.
In addition to collecting more information from more people, the proposed rule would also have collected this information for a longer period of time through “continuous vetting.” In practice, continuous vetting would have meant that immigrants to the United States would continue to be monitored even after they entered the country to qualify for immigration benefits. The biometrics data collection would have ceased only if and when they became American citizens. Although such continuous vetting had been on the table before the proposed rule, DHS would have made the receipt of immigration benefits contingent on the collection of biometrics data, which, in combination with the increased number of affected people and range of collected information, would have led to an even more pronounced invasion of individuals’ privacy.
Continuous vetting would have allowed DHS to demand updated biometric information from immigrants and immigrant sponsors for years, possibly even decades, which could manifest as a form of discriminatory surveillance of racial minorities. Furthermore, on a more pragmatic level, the American immigration system has already been marked by delays, an issue that has been exacerbated by COVID-19. Allowing for the collection of more data, from more people, for longer periods of time would inevitably increase the delays and would be accompanied by significant financial costs as well.
Privacy, Security, and Free Expression Impacts of the Proposed Rule
As we pointed out in our comments, the proposed rule failed to account for privacy concerns and how biometric data collection might impact people’s security and anonymity. Part of the issue was that DHS’s proposed rule was too vague for individuals or organizations to have a clear sense of the uses to which the collected biometric data would be put. Broad stated purposes for the collection of this information, such as “national security” and “management of the immigration life cycle” gave little insight. This vagueness would have led immigrants, their sponsors, and others whose biometrics would become subject to collection to hold back from engaging as fully in civic activities for fear of their actions and words being continuously monitored by the government.
DHS also failed to address other considerations in its proposed rule, such as how to ensure that whatever data was collected was kept secure and only used for necessary purposes. The biometrics data could easily have been repurposed for other uses without individuals’ consent. Unlike other types of identifying data held by the government like social security numbers, biometric data cannot be changed or updated if the data ends up in the hands of a malicious entity, so compromised data would have more far-reaching consequences.
Reasons For the Proposed Rule’s Withdrawal
In response to the 5,147 comments DHS received on the proposed rule – most of them negative – DHS withdrew the proposed rule on May 10, 2021. Many of the objections CDT and others made to the proposed rule were mentioned in the withdrawal statement. It noted that commenters objected to the breadth of the rule, its impact on privacy, the increased financial costs it would impose on people seeking immigration benefits, and the longer delays it would cause for processing immigration benefit requests.
DHS noted that it still supports having the flexibility to collect biometrics and that, after deliberation, it may propose additional rules about biometrics collection, consistent with Executive Order 14012.
Executive Order 14012 and Its Further Implications, Including for Social Media Monitoring
The February 2, 2021 Executive Order 14012, titled “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” figured prominently in DHS’s decision to withdraw the proposed biometrics rule.
E.O. 14012 sets forth President Biden’s vision for immigration. It states that America is a nation that welcomes immigrants into civic life, and that the federal government should be developing strategies to ensure that immigrants are fully integrated into American society. These ideals were at odds with DHS’s proposed rule, which would have incentivized people to keep quiet and to not get involved so as not to draw attention to themselves and to minimize the amount of biometric information collected about them. President Biden directed the Secretary of Homeland Security, among other officials, to “eliminate barriers in and otherwise improve the existing naturalization process,” yet the proposed rule and the vetting it required would have erected new barriers and prolonged the naturalization process overall.
The executive order also instructed the Secretary of Homeland Security, Secretary of State, and Attorney General to each submit reports reviewing their agencies’ regulations, policies, and other actions, particularly looking at whether they might pose barriers to immigration and naturalization. In the wake of these instructions, the agencies will likely be looking to identify existing practices that might have a chilling effect on immigration and naturalization. The Department of Justice has already dismissed its previous ongoing defense of the Public Charge Rule, which had allowed for the consideration of the receipt of government benefits (including those for food and housing) in allowing people to immigrate to the United States.
On the government surveillance front, this review may result in federal agencies taking a step back to consider the implications of collecting more data than necessary for immigration purposes, and then retaining that data for longer than necessary. This review may result in additional executive action in the immigration arena to protect privacy and free expression and encourage civic engagement.
In particular, the Department of State should re-consider the information collection it has put in place to compel people seeking admission to the United States to disclose their social media identifiers so their statements on social media can be used against them to deny visas. In 2018, the State Department solicited comments on a proposal to collect social media identifiers that applicants for immigrant visas have used in the past five years. Our comments to that proposed information collection explained how it would erect new barriers to immigration, such as submission of unintentionally incomplete applications, and improper denial of visa applications based on misinterpretation of statements made on social media. That information collection nevertheless went into effect shortly thereafter.
Unfortunately, the Department of Justice recently indicated that, at least for now, it will continue to defend the rule against an ongoing legal challenge. Because it is inconsistent with the spirit and goals of President Biden’s Executive Order, the Department of State should re-evaluate this collection. A similar proposal from DHS to collect social media handles that would have impacted 33 million people also drew critical comments from CDT and others. It was disapproved earlier this year by the White House Office of Information and Regulatory Affairs because DHS had not “adequately demonstrated the practical utility of collection this information,” and never went into effect.