Like other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At every stage of the process of migrating or traveling to, from, and within the United States, individuals are subject to collection and analysis of extensive quantities of personal information for immigration control and ancillary purposes. This information is aggregated and stored for long retention periods in networks of databases and shared among an escalating number of public and private actors with limited transparency, oversight, or accountability. The deployment of these technologies has reshaped the meanings and functions of immigration control itself—transforming and integrating a regime of immigration control, operating primarily upon noncitizens at the territorial border, into part of a more expansive regime of migration and mobility surveillance, operating without geographic bounds upon citizens and noncitizens alike. Traditional immigration law frameworks furnish neither the vocabulary to fully engage this transformation nor the mechanisms to effectively constrain these activities.
Building on previous scholarship conceptualizing and examining immigration surveillance as an emergent set of governance practices, this Initiative further examines these sweeping changes in the techniques and technologies of immigration control—their swift proliferation, enormous scale, likely entrenchment, and broader significance—across all of the many domains in which they have been implemented. The use of these technologies has routinized the collection, storage, aggregation, processing, and dissemination of detailed personal information for immigration control and secondary purposes on an unprecedented scale. The ramifications of this reconfiguration may be seen in a variety of concrete domains, including territorial border control by federal officials, interior enforcement by state and local officials, employment eligibility verification by private employers, and others. In each of these settings, automation, algorithms, and technology-based surveillance not only have contributed to tremendous growth in the number of individuals removed from the United States, but also have significantly transformed how immigration control activities are conducted, experienced, and resisted.
Collectively, these activities have accelerated the deterritorialization of the national border for migration and mobility control purposes and blurred the lines between immigration regulation and other regulatory domains. As immigration surveillance activities have proliferated and become tightly integrated, the set of boundary points at which the nation-state authorizes individuals to enter or be admitted, prevents or allows their entry or admission, or subjects them to possible expulsion has been decoupled from the territorial border and rendered “virtual”: layered, electronic, mobile, and policed by an ever-increasing number of public and private actors, largely free from the legal and practical mechanisms that have traditionally constrained immigration and border control activities.
The technologies that enable this immigration surveillance regime can, and do, bring significant benefits. However, their unimpeded expansion erodes the practical mechanisms and legal principles that have traditionally constrained aggregations of power and protected individual autonomy and fundamental rights, as similarly illustrated in discussions of electronic surveillance in other settings. Accordingly, the initiative explores the potential of stronger legal frameworks to govern and constrain immigration surveillance practices and the implementation of these technologies, in order to preserve zones in society where immigration surveillance activities do not take place and to ensure greater due process, transparency, accountability, and respect for fundamental rights when they do.
- Anil Kalhan, Professor of Law, Drexel University, Thomas R. Kline School of Law