Marking a big win for the privacy and civil liberties of immigrant communities, the Biden Administration recently rescinded a Trump-era proposed rule that would have massively expanded the collection of biometrics from people applying for an immigration benefit. Introduced in September 2020, the U.S. Department of Homeland Security (DHS) proposal would have mandated biometrics collection far beyond the status quo—including facial images, voice prints, iris scans, DNA, and even behavioral biometrics—from anyone applying for an immigration benefit, including immigrants and often their U.S. citizen and permanent resident family members.
The DHS proposed rule garnered more than 5,000 comments in response, the overwhelming majority of which opposed this unprecedented expansion of biometrics. Five U.S. Senators also demanded that DHS abandon the proposal.
EFF, joined by several leading civil liberties and immigrant rights organizations, submitted a comment that warned the proposal posed grave threats to privacy, in part because it permitted collection of far more data than needed to verify a person’s identity and stored all data collected in the same place—amplifying the risk of future misuse or breach. EFF’s comment also highlighted the burden on First Amendment activity, particularly because the breadth of sensitive biometrics required by the proposal could lay the groundwork for a vast surveillance network capable of tracking people in public places. That harm would disproportionately impact immigrants, communities of color, religious minorities, and other marginalized communities.
In its final days, the Trump Administration failed to finalize the proposed rule. Civil liberties and immigrant rights organizations, including EFF, pushed hard during the transition period to rescind it. Last month, the Biden Administration did just that.
The rescission of this dangerous proposal is important to protecting the privacy rights of immigrant communities. However, those rights have been continuously eroded, including a regulation enacted last year that mandates DHS to collect DNA from people in U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) custody and enter it into the FBI’s CODIS database. Recent reporting has shown this practice even more widespread than anticipated, with border officers relying on the regulation to collect DNA from asylum-seekers.
History has long shown that the surveillance we allow against vulnerable communities often makes its way to affecting the rest of the population. While the rescission of this proposed rule is a good first step, the battle for the privacy rights of immigrants—and for all of us—continues.