The DHS reportedly maintains a database that catalogs critics of the Trump administration’s approach to immigration, and free-speech advocates warn that such a system could suppress constitutionally protected expression.
Advocates for free speech want more information about the Department of Homeland Security’s (DHS) rumored database that tracks critics of the Trump administration’s immigration policies and the potential to chill constitutionally protected speech. Yet, to date, the agency has not replied to repeated Freedom of Information Act requests seeking public records.
Amid rising friction between federal immigration officials and protesters earlier this year, the administration’s border czar, Tom Homan, announced on Fox News in January his plan to build a database intended to prosecute individuals who “impede or interfere” with immigration operations. He claimed that such a registry would also encompass those who film officers—a behavior safeguarded by the First Amendment.
Not long after, a viral video surfaced showing an Immigration and Customs Enforcement (ICE) agent recording a legal observer’s car. Asked what he was doing, the officer allegedly replied, “Because we have a nice little database, and now you’re considered a domestic terrorist.” And CNN reported on a DHS memo directing Minneapolis-based agents 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 former DHS spokesperson Tricia McLaughlin firmly denied the existence of such a database, the Foundation for Individual Rights and Expression (FIRE), a nonprofit organization defending Americans’ right to free speech and free thought, sought more information to illuminate the government’s activities and data collection. Coupled with federal agencies’ increased use of facial-recognition software via contracts with firms like Mobile Fortify and Clearview AI, such a database could carry “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 placing 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 sought access to 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 regarding actions that could violate the First Amendment. 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 aimed at uncovering 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 shifted to a far quieter media posture. Yet the plans to carry out mass deportations have not changed. Nor have the administration’s plans to counter domestic terrorists, including the broadly defined “Antifa.”
FOIA requests, such as those filed by FIRE, are crucial to keeping agencies transparent and accountable when implementing controversial policies. The DHS and ICE must comply, regardless of whether 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 represent a chilling and unconstitutional abuse of power—or officials are simply engaging in loose talk that aims to intimidate people into silence,” Gaba explained. “Both outcomes are unacceptable in a free society.”
