Customs and Border Protection (CBP), the nation’s largest federal law enforcement agency, operates with routine impunity. Now, the agency has asked the National Archives and Records Administration (NARA), which maintains federal agency records, to approve destruction of internal CBP records of misconduct. 
 
An agency rife with abuse should not be allowed to purge its own paper trail of wrongdoing. That’s why this week, the ACLU of Texas Border Rights Center, along with more than 100 partner organizations, filed a public comment urging NARA to reject CBP’s proposal. The principal reason: CBP’s own oversight system is a disaster, and future study of the agency’s failures of accountability will be stymied by the documents’ destruction. 
 
The documents CBP seeks to ultimately destroy include “records developed to track and monitor complaints that are or will be investigated by DHS Civil Rights and Civil Liberties (CRCL) regarding alleged violations of civil rights and civil liberties”; “records pertaining to administrative and criminal investigations on [CBP] employees, contractors, and those in CBP custody”; and records and reports of Prison Rape Elimination Act allegations. 

Today, CBP employs more than 44,000 Border Patrol agents and CBP officers, and maintains a budget of nearly $17 billion. Despite the agency’s massive workforce and budget, accountability mechanisms have failed to ensure any semblance of accountability. For example, a Cato Institute study found that between 2006 to 2016, CBP “misconduct and disciplinary infractions outstripped all other federal law enforcement” and “it is virtually impossible to assess the extent of corruption or misconduct … because most publicly available information is incomplete or inconsistent.” Just this year, instead of purchasing medical supplies for immigrants, CBP wasted the allocated funds on dog food and dirt bikes. 

The agency’s complaint and disciplinary systems are broken. According to data obtained by the American Immigration Council in 2017, the agency took “no action” in 95.9 percent of complaints filed against the agency between 2012 and 2015. Despite independent advisory panel recommendations issued in 2016, CBP has still not fixed its disciplinary system. The panel recommended CBP hire 350 internal affairs investigators and appoint a discipline czar to coordinate internal accountability. The agency has done neither.

CBP records related to CRCL investigations would, under this proposal, be destroyed after four short years. The ACLU of Texas and the ACLU of San Diego and Imperial Counties filed at least 11 separate complaints with CBP’s joint intake system in 2019 alone (See additional examples here, here, and here.). Those complaints contained numerous individual examples of CBP abuse and were built on hundreds of interviews. Only one resulted in a confirmed DHS Office of Inspector General investigation, while others received form letter responses from CRCL ensuring inquiry into the allegations with no further communication about the complaint. Documentation collected by CBP stemming from these complaints could prove vital to future examinations of a particularly abusive period in the agency’s history.  

Moreover, CRCL whistleblowers have also raised alarm bells about the oversight body’s diminishing ability to hold CBP accountable. Last year, former CRCL staff attorney and advisor Ellen Gallagher said the agency seemed to “mislead the public” by soliciting complaints of alleged violations “if [CRCL had no intention of specifically investigating or resolving those individual complaints.” Just last month, CRCL staff claimed publicly that CBP was ignoring their concerns about the development of a new use-of-force policy and the agency’s intention to use “chemical deterrents” at the border.   

CRCL’s frequent inaction and CBP’s own undermining of the office’s oversight role further bolsters the need for complete and permanent retention of internal agency records. We simply do not know what types of abuse could be documented in these files. 

CBP misconduct often only becomes public via leaks, investigative reporting, or lawsuits, meaning the loss of internal records could forever bury unknown abuses. For example, the first death of a child in CBP custody in over 10 years was revealed by journalists, after CBP failed to report the death to Congress, as required. Independent lawyers uncovered children held in deplorable conditions at a Border Patrol station in Clint, TX. Border Patrol’s racist and xenophobic Facebook page was uncovered by a reporter, and the prevalence of sexual harrassment and rape within the agency has been revealed only when survivors and former officials spoke up. Lawsuits have similarly uncovered severe agent misconduct, including kidnapping, sexual assault, and an agent intentionally running over a migrant. 

With systemic failures of oversight, CBP’s abject failure to hold its own personnel accountable, and a complete lack of transparency, the last thing the agency should be permitted to do is purge its own records.

Shaw Drake, Policy Counsel, ACLU Border Rights Center

As colleges and universities around the country attempt to resume some semblance of in-person education this fall, many schools are requiring their students to download COVID-19 apps as a condition of returning to campus. These apps vary in what they do, but we are highly skeptical of, or outright opposed, to many of them. It is unlikely that any of these apps will make a significant difference in stemming the spread of the coronavirus on campuses, and it appears that many such apps invade students’ privacy. Many of them, as professor of sociology and technology Zeynep Tufekci argues, are merely “performative” on the part of college administrators — an effort to make a show that they are doing something — and will likely prove to be actively counterproductive.
 
In public institutions, these app installation requirements represent a government demand that citizens install a particular piece of software on their personal phones. It is true that the current outbreak constitutes an extraordinary situation, but we don’t want this to open the door to a future where people become prisoners of their phones, as various government agencies use compulsory app installation rules to turn them into enforcement devices for all kinds of legal and administrative rules.
 
It is difficult for us at the ACLU to track what is happening at thousands of schools across the United States, but we encourage returning students and staff being asked to download apps onto their personal devices to ask some sharp questions of school administrators.
 
1. What does it try to do? Does it administer daily health surveys, remind you to get tested, or provide daily exposure notifications? Does it connect to testing or treatment regimes? Will it help you get in touch with campus health services, or inform you where you can get tested? Does it record your movements or the people that you are near? (We are skeptical and have raised many questions about both location tracking and proximity tracking as anti-coronavirus measures and oppose the former in all circumstances.)

2. Is it used as an enforcement device? Any apps that are used to try to ensure compliance with quarantines or social-distancing rules dramatically raise the stakes around their accuracy and dependability.

3. What data does it collect? Does it require students to identify themselves, or can it be run anonymously? Does it collect health information? If so, does that data align with current public health advice? Does it collect location data or associational data (who you spend time with)? How frequently does it collect any such information — i.e., how fine-grained is it?

4. Is that data stored centrally, or only on your device? Data that is stored on someone else’s computers raises many more privacy issues than data stored locally on your phone.

5. Who has access to the data collected by the app? A company? School administrators? Campus or town police? Others? If it is used as an enforcement measure, who is notified of suspected social-distancing violations — administrators, academic deans, campus police, others?

6. Is it voluntary? Are you given a choice about whether to use it? Are there places on campus you can’t go without the app?

7. What other policies govern its use? Have administrators communicated with you about its security or privacy protections? Are those protections strong?

8. How much control do you have over it? If it’s not voluntary, can you turn location tracking off, pause it, etc., or is it the functional equivalent of an ankle bracelet?

9. What servers does it talk to? Some apps are built with third-party software development kits (SDKs) that are unnecessarily intrusive, show advertisements, or consume your battery or data plan.

10. Is the source code for the app available? Have students or faculty at your university had the opportunity to review that code to verify that the app operates as advertised? If not, why not?
 
Some COVID-19 apps — for example, symptom checklists for student that properly protect privacy — may be harmless or even helpful. But many others will create bad precedents while doing little to stem the spread of COVID. Asking detailed questions of school administrators can help ensure that the current pandemic doesn’t lead to a long-term erosion in the rights of students, and of us all.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

As a direct result of the immense courage of our clients and three years of litigation, the Trump administration has officially abandoned its policy of preventing young immigrants in its custody from accessing abortion care. Yesterday, the administration adopted a new policy that prohibits Office of Refugee Resettlement (ORR) staff and staff employed by any ORR-funded shelter from blocking or interfering with unaccompanied pregnant minors’ access to abortion. ORR’s adoption of this new policy was a condition of our agreement to dismiss our case, which we have done today.

It was three years ago that our heroic client Jane Doe — who at the time was 17 and was seeking refuge in the United States on her own — took on the Trump administration. In September 2017, we learned that ORR was trying to stop Ms. Doe from having an abortion through her fierce guardian ad litem, Rochelle Garza, and Texas-based Jane’s Due Process. 

Pursuant to the orders of then-ORR Director Scott Lloyd, Ms. Doe was effectively held hostage in the shelter where she was residing for over a month. The federal government prevented her from leaving the shelter to attend any abortion-related appointments; forced her to undergo a medically unnecessary ultrasound and to receive religious “counseling” from an anti-abortion crisis pregnancy center, where they also prayed over her; and she was kept under intensive surveillance. Lloyd also instructed staffers to inform Jane Doe’s parents of her pregnancy and abortion request against Ms. Doe’s express wishes, and despite the fact that she had already obtained a court order permitting her to proceed with her abortion without involving her parents.

We rushed into court on behalf of Ms. Doe, and after weeks of court battles, obtained a court order allowing her to access abortion. Since then, we have fought alongside Ms. Doe and on behalf of our other plaintiffs, Jane Poe, Jane Roe and Jane Moe, who were also subjected to ORR’s coercive, anti-abortion tactics, to stop the federal government from commandeering the reproductive decisions of all young immigrants in its custody. Today, we are able to proudly declare that justice has finally been served.

Our success is especially meaningful for Ms. Doe, who fearlessly represented hundreds of others to ensure that what happened to her would never happen to anyone else. In response to our victory, she said, “I am happy to know that my fight means that other young women like me will be able to make the decision about whether to become a parent for themselves.”

We are certainly taking a moment to celebrate, but the fight for Ms. Doe’s vision of “reproductive freedom for all” is far from over — including for others currently in immigration detention. Indeed, the recent allegations from the Irwin County Detention Center that a government-contracted doctor performed unwarranted gynecological procedures on women in ICE detention are very disturbing, especially in light of our country’s long history of forcibly sterilizing Black and Brown people. These reports follow
years of reproductive abuse by this administration of those in immigration detention.
       
In states across the country, the right to reproductive freedom is also in peril. Anti-abortion politicians have not slowed down, even during a global pandemic. Many states tried to weaponize the COVID-19 crisis to prohibit abortion under the guise of protecting public health, a terrifying preview of what would happen if Roe v. Wade were overturned. And with the devastating passing of Justice Ruth Bader Ginsburg, the balance of the Supreme Court could soon be shifted against the constitutional right to abortion. In light of President Trump’s vow to only appoint justices that would overturn Roe v. Wade, it is no exaggeration to say that the future of legal abortion is at stake.

So, we celebrate with one eye on the Supreme Court, and the other on the road ahead. We’ll continue to fight for access to reproductive health care for people in federal custody and beyond to ensure that the Jane Doe’s victory does not become hollow and her vision for the future is realized: that all people are able to access reproductive health care, including abortion, without obstacles, shame, or stigma.

Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project,
& Meagan Burrows, Staff Attorney, ACLU Reproductive Freedom Project