Secure Communities and the limits of local consent
In a 2011 episode, Bob Zadek introduced Secure Communities as an initiative to combat illegal immigration and asked reporter Elise Foley to explain it. Foley described Secure Communities as an Immigration and Customs Enforcement program in which fingerprints taken by local police are run through a Department of Homeland Security system to screen for people who had crossed the border illegally or were otherwise known to be undocumented and in the United States. Those fingerprints already went to the FBI to screen for fugitives and people with crimes in other states; now they also went to DHS, which Foley said effectively allowed DHS to net many people it could not catch using just ICE enforcement officials. Zadek framed the program as one that told local governments they could sign up if they wanted federal help in ridding their communities of undesirables, and asked whether it was all pretty voluntary. Immigration Reform Is Broken (2011)
Foley said that was what the government originally said: the program was described as voluntary, jurisdictions could choose to participate, and it was based around memorandums of understanding with each state. Some states were more hesitant to join, including Massachusetts, while others signed on quickly. But in cities such as San Francisco, Santa Clara, Arlington, Virginia and other places around the country, when jurisdictions tried to opt out, they found out from the federal government that they were not allowed to decide they did not want to send their fingerprints to immigration enforcement, so it ended up being somewhat mandatory. The most recent activity, Foley said, was that the entire state of Illinois — the governor said they wanted to terminate the memorandum of understanding and no longer participate on a state level — and DHS confirmed to her the week before that this was not really going to be an option; they would continue using fingerprints from Illinois despite Governor Quinn’s actions. Immigration Reform Is Broken (2011)
Trump-era enforcement proposals
In a December 2016 episode, Zadek asked Alex Nowrasteh what immigration policy would look like in America if President-elect Trump were taken at his word. Nowrasteh, working from Trump’s position paper published the previous year, listed a huge increase in border enforcement including a border wall, which he said was the number one chant at Trump’s rallies, to run out to about 1,000 miles along the border with Mexico to try to stop unlawful immigration. On interior enforcement, Nowrasteh said Trump wanted to triple the number of Immigration and Customs Enforcement agents who run the deportation programs currently — an increase of about threefold. Alex Nowrasteh: How Prop. 187 Turned California Blue (2016)
Nowrasteh also described other proposals: instituting E-Verify nationally, so that every time a private employer hires somebody the employer must run the person’s name and information through a government database to make sure the person is legally eligible to work in the United States; ending the Deferred Action for Childhood Arrivals program, which President Obama put in place through executive action in 2012 and which deferred deportation of some illegal immigrants brought here as children who met certain categories and were not violent criminals, giving them a temporary work permit; and mandatory detention for all illegal immigrants apprehended in the United States. Nowrasteh called the two most worrying items the proposal to decrease legal immigration — cutting the number of green cards for workers down to about zero until the economy fully recovered and the unemployment rate was zero — and the proposal to end the entire refugee program, either entirely or just for Muslims entering the United States through the refugee program. Alex Nowrasteh: How Prop. 187 Turned California Blue (2016)
California’s sanctuary laws and the federal lawsuits
In a March 2018 episode, Zadek asked Mitch Jeserich why one level of government in the federal system was suing another over immigration. Jeserich described the federal government’s lawsuits against California over three measures approved the previous year that made California a sanctuary state. The three bills were: one providing that local law enforcement cannot cooperate with immigration officials; one giving the California Attorney General’s office the right to inspect ICE detention centers or jails; and one penalizing employers who cooperated with the federal government in looking at records to see who is a citizen and who is not, with the penalty in effect if there was not a warrant — that is, if the employer was willingly working with the federal government rather than being mandated to through a warrant. ICE in the Age of Trump (2018)
Jeserich said California was not the only state but was really the first to become what is called a sanctuary state, and that this came out of a number of cities throughout California becoming sanctuary cities. The fundamental idea, he said, was that the state or the cities would not participate, and city law enforcement would not participate with ICE authorities — the Immigration and Customs Enforcement agency within Homeland Security, responsible for immigration and for immigration raids. He noted a president who campaigned on going after undocumented immigrants, and said Attorney General Jeff Sessions and the Trump administration overall had been aggressive recently, with raids throughout California including a series in the San Francisco Bay Area the previous month. Libby Schaaf, the mayor of Oakland, tipped people off before one of those raids, which angered the Trump administration, and Sessions shortly after came to the state and announced lawsuits challenging the three state laws. ICE in the Age of Trump (2018)
Federal personnel in Portland
In a July 2020 episode, Zadek asked Pat Eddington about what he called the mission creep of Homeland Security and about an experiment being undertaken by the federal government in Portland. Eddington agreed with Zadek’s characterization and cited his Cato blog post of July 21st titled “The People of Portland: DHS’s Involuntary Human Test Subjects.” He said the point of the headline was to highlight the radical deployment of Border Patrol, Immigration and Customs Enforcement personnel and the like into an American city uninvited — emphasizing that in Portland neither the mayor nor the governor of the state asked for federal intervention with respect to protests that had been taking place. The “Ratchet Effect” in Real Time (2020)
Eddington described the effort as one on the part of acting DHS Secretary Chad Wolf, in coordination with Attorney General William Barr at the Justice Department, to set a precedent whereby the federal government, absent any emergency declaration by the state government or a direct request for federal law enforcement assistance, simply inserts itself into a situation in which lawful First Amendment protected protest activity had been ongoing in Portland for almost two months. He quoted Jo Ann Hardesty, a city commissioner in Portland, as saying at a news conference, as quoted by the New York Times, that what was making more people come to the street every night was the brutalization happening to regular community members at the hands of Portland police and these federal agents. The “Ratchet Effect” in Real Time (2020)
Eddington said that by the end of May, and certainly by mid-June, many of the protests had begun to peter out, there was a level of responsiveness from city officials, and the existing Portland police chief stepped down because of controversial policies including what appeared to be an unjustified shooting of a Portland resident, so the situation was on a glide path toward stabilization if not resolution. Then, after the President issued an executive order on June 26th for the so-called protection of monuments, within a few days there began a massive deployment of DHS personnel. He said the department had clearly had this in mind for some time, because in response to questions from Senator Kamala Harris after a Senate hearing — questions posed on June 6th — one thing she asked about was the extent to which DHS and related personnel, particularly Customs and Border Protection, were going to be deployed around the country. The “Ratchet Effect” in Real Time (2020)
Eddington gave figures: 2,174 Customs and Border Protection personnel involved in operations, not simply in Portland but actively on the ground in other cities or preparing to go; assets including 38 helicopters, 8 fixed-wing aircraft, 4 drones, 4 unmanned aerial systems, one BearCat, 50 marked vehicles, 52 unmarked vehicles, 2 ATVs and 3 vessels. He said the 2,174 number represented about 10% of CBP’s total authorized strength, and that according to the responses to Senator Harris the agents were to be deployed in Chicago, in Ohio, in the Clinton area, in Spokane in Washington, in Tucson, elsewhere in Michigan and in Texas — a country-wide massive effort on the part of DHS and specifically CBP, with simply no precedent for it. The “Ratchet Effect” in Real Time (2020)
Data-sharing and sanctuary protections
Two September 2022 episodes with Jonathan Hofer turned to license plate readers and what Hofer called their role in mass surveillance. Hofer said that California has sanctuary city laws, part of which is not handing over data to, for example, Immigration and Customs Enforcement — which he called kind of a Jeffersonian principle, saying there is something to be said for people explicitly saying their local government should not be tasked with enforcing federal law, and that at the very least it could divert valuable law enforcement resources. What data-sharing arrangements do, he said, is skirt those laws: a jurisdiction with loose privacy regulations can be used to get data from that place, or one can tell ICE, in his phrasing, here is access to all our license plates — we are not helping enforce immigration, but here you go. The Mass Surveillance nobody is talking about (2022)
Hofer also described how the data is stored: sometimes a common pool of information, but usually individual officers or departments have access to the data, and although one would think such sensitive data would be tightly regulated or controlled with many safety features, that is usually not the case. Many departments lack good cybersecurity standards, sometimes give access to the wrong people, and in some cases officers retire and still have access to the database. He said nefarious bad actors use the databases to stalk ex-wives or ex-girlfriends, and cited a semi-notable case in Washington where other police officers were stalking a female police officer and accessed her record something like 400 times. The Mass Surveillance nobody is talking about (2022)
Hofer said ALPRs are bad when they work incorrectly and probably even worse if they work perfectly. He explained mosaic theory as the idea that even if collecting individual data points is legal, once a picture is created with those points it becomes a Fourth Amendment search, stemming chiefly from two semi-recent Supreme Court cases: United States v. Jones in 2012, which he said involved police putting a GPS tracker on a car in the greater DC area and tracking it after warrants expired, with the Court unanimously saying the government cannot GPS track a vehicle; and Carpenter v. United States in 2017, which he said revolved around a bank robbery and in which the government used cell phone tower data to track suspects’ phones, with the Court saying the government cannot do that and cannot even retrace steps using historical data exceeding 12 days. The Mass Surveillance nobody is talking about (2022)
Hofer said that combining those cases yields a serious argument that license plate readers as practiced in California and throughout the nation are unconstitutional: ALPR location data is not technically GPS and does not use a satellite, but it is an effective substitute for GPS data, logging latitude and longitude over the internet, creating a picture of people’s lives and allowing historical data to track whereabouts. He said this has not been in front of the Supreme Court and there is really no ALPR case that has been before it, nor anything coming up that the Court is going to rule on regarding ALPR use generally. In lower courts, he said, the mosaic theory has been endorsed — most recently in Commonwealth v. McCarthy in the Massachusetts State Supreme Court, involving a woman spotted crossing a bridge where there was an ALPR, and in a Texas court of appeals — but in both those cases the courts ruled in favor of the state, reasoning that with only one camera and only one scan in the Texas case there was not sufficient data to form a mosaic. That is not what is happening in California, he said: Piedmont, less than two square miles, has almost 40 cameras; Los Angeles has 500; they scan cars more than once, and a man in San Leandro who did a public records request found his car had been scanned about 100 times. In his contention that constitutes a mosaic search and would require a warrant. The Mass Surveillance nobody is talking about (2022)
Across episodes
The same structural question — how far federal immigration enforcement may reach into states, cities and private data — recurs from 2011 to 2022. In 2011 Elise Foley described localities told they could not opt out of Secure Communities; in 2018 Mitch Jeserich described California’s three sanctuary measures and the federal lawsuits against them; in 2022 Jonathan Hofer described data-sharing arrangements that skirt sanctuary laws by routing license plate data to ICE. The later episodes add mechanisms — state legislation, litigation, data access — rather than resolving the question the earlier one raised.
What the sources do not cover
The excerpts do not describe ICE’s founding, its statutory authority, its internal organization or its budget, and they do not state the outcome of the federal lawsuits against California or of any Secure Communities dispute. They do not say how the Portland deployments ended, whether the proposed tripling of ICE agents or the other Trump-era proposals were adopted, or how any court has ruled on license plate readers as such. No excerpt states which amendment the sanctuary-city litigation turned on, and the 2011 and 2016 segments break off before the discussion of the Tenth Amendment and federal bullying resumes.