Is the DHS Tracking ICE Critics? The Public Deserves Answers.

Free speech advocates want to know more about the Department of Homeland Security’s (DHS) rumored database that tracks critics of the Trump administration’s immigration policies and its potential to chill constitutionally protected speech. But so far, the agency has ignored repeated Freedom of Information Act requests for public records. 

Amidst the rising tensions between federal immigration agents and protestors earlier this year, President Donald Trump’s border czar, Tom Homan, announced on Fox News in January his push to create a database to prosecute people who “impede or interfere” with immigration operations. Such a database, according to Homan, would include those who film officers—an activity protected under the First Amendment. 

Shortly after, a video went viral of an Immigration and Customs Enforcement (ICE) agent documenting a legal observer’s car. When asked what he was doing, he told the observer, “Because we have a nice little database, and now you’re considered a domestic terrorist.” And CNN reported on a DHS memo asking agents assigned to Minneapolis to “capture all images, license plates, identifications, and general information on hotels, agitators, protestors, etc., so we can capture it all in one consolidated form.” 

Although the former DHS spokesperson Tricia McLaughlin staunchly denied the existence of such a database, the Foundation for Individual Rights and Expression (FIRE), a nonprofit organization that defends Americans’ right to free speech and free thought, wanted to learn more to shed light on the government’s activities and data collection. Coupled with federal agencies’ increased use of facial recognition software through contracts with companies like Mobile Fortify and Clearview AI, such a database could have “serious First Amendment implications,” according to a new lawsuit FIRE filed this week against the DHS and ICE in federal court. 

“Americans deserve to know more about this database, starting with whether it exists,” FIRE attorney Jacob Gaba said in a statement. And if it does exist, oversight might be required to ensure constitutional compliance. “The First Amendment prohibits the government from retaliating against peaceful protestors,” continued Gaba, “including by putting their names and faces in a shadowy database. 

But so far, according to the complaint, the DHS and ICE have failed to respond to four separate Freedom of Information Act (FOIA) requests submitted by FIRE since January. The requests asked for any public records concerning, in part, “the existence…[of] any database referenced by Homan’s comments,” all training materials or guidance on entering information into the database, “all communications…with vendors regarding the development…of the database,” and “any records showing that [the agency] sought a legal opinion regarding the legality of the database.” 

Under federal law, the DHS and ICE must determine within 20 business days after receiving a request whether to comply or notify that the request has been denied. Instead, FIRE’s FOIA requests, dated January 28, February 5, and February 11, have been left “pending” as of May 19, according to the lawsuit. Left with no response, FIRE has asked a federal judge to, in part, order the agencies to disclose the requested public records.

Reason also reached out to the DHS for comment on FIRE’s unaddressed FOIA requests and to ask whether such a database truly exists, but did not immediately receive a response.

This is not the only instance in which the DHS and ICE have ignored FOIA requests on the agencies’ potentially First Amendment-violating actions. Last month, two lawsuits were filed by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) against the DHS and ICE for failing to respond to FOIA requests to learn more about the potentially unconstitutional use of unmasking subpoenas to identify ICE’s anonymous online critics. 

Since former Secretary of Homeland Security Kristi Noem was fired in March and replaced by Markwayne Mullin, the DHS and ICE have pivoted to a much quieter media strategy. But plans to orchestrate mass deportations have not changed. And neither have the Trump administration’s plans to counter domestic terrorists, including the broadly defined “Antifa.” 

FOIA requests, like the ones submitted by FIRE, are essential to ensure agencies remain transparent and accountable when implementing such controversial policies. The DHS and ICE must comply, whether or not the rumored database exists, because either scenario threatens Americans’ First Amendment rights, according to Gaba. 

“Either there is, in fact, a database of people exercising their right to criticize the government—which would be a frightening and unconstitutional abuse of power—or officials are just engaging in loose talk that intimidates people into silence,” Gaba explained. “Both outcomes are unacceptable in a free society.”