You Can’t Refuse To Be Scanned by ICE’s Facial Recognition App, DHS Document Says

Immigration and Customs Enforcement (ICE) does not let people decline to be scanned by its new facial recognition app, which the agency uses to verify a person’s identity and their immigration status, according to an internal Department of Homeland Security (DHS) document obtained by 404 Media. The document also says any face photos taken by the app, called Mobile Fortify, will be stored for 15 years, including those of U.S. citizens.

The document provides new details about the technology behind Mobile Fortify, how the data it collects is processed and stored, and DHS’s rationale for using it. On Wednesday 404 Media reported that both ICE and Customs and Border Protection (CBP) are scanning peoples’ faces in the streets to verify citizenship.

“ICE does not provide the opportunity for individuals to decline or consent to the collection and use of biometric data/photograph collection,” the document, called a Privacy Threshold Analysis (PTA), says. A PTA is a document that DHS creates in the process of deploying new technology or updating existing capabilities. It is supposed to be used by DHS’s internal privacy offices to determine and describe the privacy risks of a certain piece of tech.

“CBP and ICE Privacy are jointly submitting this new mobile app PTA for the ICE Mobile Fortify Mobile App (Mobile Fortify app), a mobile application developed by CBP and made accessible to ICE agents and officers operating in the field,” the document, dated February, reads. 404 Media obtained the document (which you can see here) via a Freedom of Information Act (FOIA) request with CBP.

The document says CBP is supporting ICE as a “technical service provider” to carry out requirements in President Trump’s executive order “Protecting the American People Against Invasion.” After an ICE agent takes a photo of a subject using their work-issued Android or iOS device, the tool queries a wide range of CBP and other databases, including CBP’s Traveler Verification Service. For that system CBP takes photos of peoples’ faces when they enter the U.S. 404 Media previously revealed the app runs images against a bank of 200 million images, then pulls up information such as their name, date of birth, nationality, alien number (a unique identifier the government gives to non-citizens), and whether a judge has ordered they should be deported. 

“The photograph shown […] is the photograph that was taken during the individual’s most recent encounter with CBP, however the matching will be against all pictures CBP may maintain on the individual,” the new document continues. The app can also scan peoples’ fingerprints and provide information based on those, and uploads location data “so ICE can identify where the encounter took place.”

“Although the intended purpose of the Mobile Fortify Application is to identify aliens who are removable from the United States, users may use Mobile Fortify to collect information in identifiable form about individuals regardless of citizenship or immigration status. It is conceivable that a photo taken by an agent using the Mobile Fortify mobile application could be that of someone other than an alien, including U.S. citizens or lawful permanent residents,” the document continues. “ICE agents do not know an individual’s citizenship at the time of initial encounter and will use the Mobile Fortify mobile application to determine or verify the individual’s identity, and confirm that they are a match to the Fortify the Border Hotlist.” If a subject’s photo doesn’t match one of those on the hotlist, no additional information will be returned, according to the document.

Even if the photo does not provide a match, “CBP saves the new photographs and fingerprints, taken using Mobile Fortify […] and retained for 15 years,” the document says. “ICE will take no action on individuals who are not a match to the hotlist, unless operational circumstances indicate other violations of law.”

On Wednesday, ranking member of the House Homeland Security Committee Bennie G. Thompson told 404 Media in a statement that ICE will prioritize the results of the app over birth certificates. “ICE officials have told us that an apparent biometric match by Mobile Fortify is a ‘definitive’ determination of a person’s status and that an ICE officer may ignore evidence of American citizenship—including a birth certificate—if the app says the person is an alien,” he said. “ICE using a mobile biometrics app in ways its developers at CBP never intended or tested is a frightening, repugnant, and unconstitutional attack on Americans’ rights and freedoms.”

The document says that access to the Mobile Fortify app is limited to ICE agents and officers, some CBP administrative users, and “select CBP Officers that are assisting with removal operations.” Since the document’s creation, the government has diverted tens of thousands of officers from their jobs to assist ICE’s Enforcement and Removal Operations (ERO) division, according to data obtained by the Cato Institute. That includes hundreds from various components of CBP, such as Border Patrol.

The Trump administration is making dramatic changes to ICE leadership, with plans to replace senior leaders with officials from Border Patrol, part of CBP, multiple news outlets reported. CBP has been leading the aggressive crackdown in cities like Chicago, including rappelling from Black Hawk helicopters. In response to a video showing Border Patrol commander Gregory Bovino throwing tear gas into a crowd, a judge ordered the official to meet with her daily to provide details on who has been arrested for non-immigration-related reasons.

DHS did not immediately respond to a request for comment.

“By using the Mobile Fortify app to provide real-time responses to biometric queries, ICE officers and agents can reduce the time and effort to identify targets compared to existing manual processes,” the document says.