The federal government is secretly purchasing and using our cell phone location information to locate and track people in the United States, including for immigration enforcement. We’re suing to bring some much-needed transparency to these disturbing practices.
 
The GPS chips in modern smartphones provide us with many conveniences, allowing apps on our phones to quickly map our location, provide weather updates, and more. But many of those apps don’t keep our location information to themselves. Without users realizing it, apps regularly sell users’ location information to other companies who use it for marketing and other purposes.
 
In February, The Wall Street Journal reported that this sensitive location data isn’t just for sale to commercial entities, but is also being purchased by U.S. government agencies, including by U.S. Immigrations and Customs Enforcement to locate and arrest immigrants. The Journal identified one company, Venntel, that was selling access to a massive database to the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and ICE. Subsequent reporting has identified other companies selling access to similar databases to DHS and other agencies, including the U.S. military.
 
These practices raise serious concerns that federal immigration authorities are evading Fourth Amendment protections for cell phone location information by paying for access instead of obtaining a warrant. There’s even more reason for alarm when those agencies evade requests for information — including from U.S. senators — about such practices. That’s why today we asked a federal court to intervene and order DHS, CBP, and ICE to release information about their purchase and use of precise cell phone location information. Transparency is the first step to accountability.

We’re asking the agencies to turn over all records related to their purchase and use of cell phone location data, including contracts, policies and procedures for use, communications with companies, legal analyses, and more.
 
Among the questions we seek answers to is how the government can justify obtaining sensitive cell phone location data without getting a search warrant. In Carpenter v. United States, a case argued by the ACLU, the Supreme Court ruled that law enforcement agencies cannot request personal location information from a cellphone company without first obtaining a search warrant from a judge. As Chief Justice Roberts wrote, these records deserve protection because mapping a cellphone’s location “provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
 
If law enforcement agencies can buy their way around the Fourth Amendment’s warrant requirement, the landmark protection announced by the Supreme Court in Carpenter will be in peril. Despite federal agencies spending hundreds of thousands of dollars on access to cell phone location databases, those agencies have not publicly explained their legal justifications or internal limitations on access to this invasive information. More than nine months after we submitted a request for information under the Freedom of Information Act, DHS, CBP, and ICE have yet to provide us with a single responsive record. DHS has even refused to provide its legal memorandum about these practices to U.S. senators who have requested it.
 
The public deserves to know how the agencies are accessing bulk databases of Americans’ location data and why. Today’s lawsuit aims to find out.

Affirmative action recently survived yet another legal attack: Last month, the First Circuit Court of Appeals ruled in Harvard’s favor in a long-running case challenging affirmative action. The court rightly upheld a lower court finding that Harvard’s use of race as a factor in its admissions process is constitutional. The decision is a welcome affirmation that using race-conscious decision-making is both lawful and necessary in higher education.

Consideration of all aspects of a student’s background for admission—including race—is not only constitutional; it’s critical to becoming a more equitable society. That’s why the ACLU filed a friend of the court brief (also known as an amicus brief) supporting Harvard’s ability to consider race when deciding which of its 35,000 applicants will fill the 1,600 seats in its incoming class each year.

But the fight for affirmative action and other race-conscious policies—policies that explicitly address systemic racial barriers—is not over. The Harvard affirmative action case is the latest legal challenge engineered by conservative legal strategist Edward Blum, who has been suing to bring an end to race-conscious policies, including affirmative action, for more than 25 years.

Opponents of race-conscious decision-making, like Blum, misleadingly characterize such policies as discriminatory simply because they acknowledge the reality of race. But in fact, race-conscious policies aim to address racial discrimination by recognizing and responding to the structural barriers that have long denied full social, political and economic participation to people of color in the U.S.

Blum opposes race-conscious policies in part because he believes that these barriers no longer exist. “In 1964 and 1965,” Blum has stated, “America was held hostage by the legacies of slavery and the chokehold of Jim Crow. Fast forward to [today] … the chokehold has gone away.”

This view is misguided at best.

Affirmative action opponents often favor so-called race-neutral admissions policies, which do not explicitly consider race. But in the face of persistent structural inequality, such policies are anything but “neutral.”

Research shows that schools that rely on race-neutral policies are less diverse and less accessible to historically underrepresented students of color. Campuses that have implemented race-neutral admissions policies in recent years have seen dramatic declines in enrollment numbers among underrepresented groups. For example, in the first year UC Berkeley eliminated race as a factor in its admissions, the admissions rate for Black students dropped from 50 percent to 20 percent and from 45 percent to 21 percent for Latinx students.

For its part, although the Supreme Court has consistently ruled it is legal to use race as a factor in a holistic application process, it has long viewed race-conscious policies with suspicion. Since its 1978 decision in Regents of the University of California v. Bakke, the court has failed to meaningfully distinguish race-based policies, which seek to dismantle racial hierarchy, from those that aim to perpetuate it.

While the court continues to permit affirmative action policies in higher education, it has done so with increasing hesitance and an ever-growing preference for race-neutral alternatives.

And importantly, the court is not the only place where skepticism of race-conscious policies exists: Voters in California recently rejected a ballot measure that would have restored the state’s affirmative action policy, suggesting broad public unease with race-conscious decision-making. But the view of race consciousness as racial discrimination is deeply flawed. As the late Justice John Paul Stevens once asserted: “There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”

This latest case against Harvard demonstrates that color-blindness cannot uproot this country’s legacy of racism. We must face race head-on to meaningfully address the racial inequality that persists in our society.

Note: This story originally appeared on MsMagazine.com.

Last year I met with a woman while she was jailed in an immigration detention site near Miami, Florida. She told me about her 5-month-old baby, whom she hadn’t seen in three months. She said that her husband, a U.S. citizen, had been driving her to Walmart when local police questioned them during a random traffic stop. She was not accused of a crime, and she was in the process of petitioning for residency based on her marriage to a citizen. Despite this, police took her to a local jail and detained her for Immigration and Customs Enforcement (ICE) — even though it was unlawful to do so. 

When local police act as ICE’s force multipliers, an ordinary police encounter like the one above can ruin a person’s life and tear a family apart. That is why millions of people across the country live in fear of encountering police or other law enforcement as they go about their daily lives. Immigrants, their family members, and their friends are all less likely to come forward as witnesses, provide crime tips, or seek police protection for fear of immigration enforcement. That means everyone is less safe.

The Biden administration must dismantle the federal programs that are to blame. By doing so, the Biden administration will signal to cities and counties across the country that they are right to redirect local resources to pressing needs — like the pandemic — and away from local police taking on federal immigrant enforcement. 

One such federal program utilizes 287(g) agreements, which delegate federal immigration enforcement authority to state and local police. Being in the routine business of immigration enforcement incentivizes local police to make pretextual arrests — with the actual goal of identifying immigrants to detain for ICE. It emboldens racist and xenophobic law enforcement officers across the country to use immigration enforcement as a means of threatening and harassing people in immigrant communities. These abuses are one reason why communities — including in Georgia and South Carolina — have elected sheriffs who pledged to end their localities’ 287(g) agreements.

The Trump administration drastically increased the number of 287(g) agreements, from 34 at the end of 2016 to 151 as of November 2020, including a new form of the agreement called the Warrant Service Officer program. President-elect Biden has already pledged to “[e]nd the Trump administration’s historic use of 287(g) agreements” because they “undermine trust and cooperation between local law enforcement and the communities they are charged to protect.” He must follow through on that commitment. 

The Biden administration should also end the use of ICE detainers, which are requests for non-ICE law enforcement agencies to jail people for an additional 48 hours after when the person is legally entitled to be released from criminal custody, for instance, after posting bail or having charges dropped, so that ICE can pick them up. Detainers are check-box forms developed and issued by ICE agents. They are not judicial warrants, and they are never reviewed by a judge or anyone outside of ICE. They are often based on unreliable information, including inaccurate databases. As a result, the ACLU and other organizations have documented thousands of cases of U.S. citizens erroneously held based on ICE detainers.

The Trump administration vilified communities that opted out of collaboration with immigration enforcement as part of its anti-immigrant push against so-called “sanctuary cities.” It even threatened to block state and local governments’ access to COVID-19 resources unless they agreed to aid federal immigration enforcement. Using taxpayer money, ICE launched billboard campaigns in swing states just before the presidential election. 

Those billboards spotlighted “at-large immigration violators who may pose a public safety threat” for whom there was an ICE detainer. In reality, the most recent available data shows that only 26 percent of detainers target people with any criminal conviction, when traffic violations and marijuana possession violations are excluded. Further, a person who completed their criminal sentence should not be treated as an ongoing public safety threat; nor should a person be treated as dangerous based solely on the fact of their arrest. 

The Trump administration’s public safety warnings about so-called “sanctuary cities” have no evidentiary basis. An October 2020 Stanford University study confirms that “sanctuary” policies have not led to an increase in crime.

Local law enforcement agencies face tremendous financial liability for honoring ICE detainers, as numerous cases and settlements show. In October 2020, Los Angeles County settled a class action lawsuit for $14 million. Yet state legislatures around the country have passed laws forbidding local officials from opting out of detainers or immigration enforcement more generally. The Biden administration can’t undo these state laws, but by ending the use of detainers it can prevent this federal program from being weaponized against communities that are trying to create a welcoming space for immigrants.
 
The Biden administration should also end the Secure Communities program. Right now, when local police arrest an individual and share fingerprint information with the FBI, it’s also shared with ICE and can trigger an ICE detainer — even if the arrest was illegal or if the criminal charge is ultimately dismissed. By ending Secure Communities, the Biden administration would be honoring the choices of local governments not to participate in this deportation pipeline.

Dismantling these programs will send a powerful signal to immigrant communities: the Biden administration will not continue Trump’s agenda of xenophobia and abuse.