Tue Dec 31, 2013 by Anil Kalhan
ARTICLE: Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio State Law Journal 1105 (2013)
With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth of all individuals removed from the United States were initially identified and apprehended through the program, contributing to unprecedented overall numbers of noncitizens who have been removed from the United States.
Secure Communities is part of a broader, technology-based shift toward automated immigration policing, the use of interoperable database systems and other technologies to automate and routinize the identification and apprehension of potentially deportable noncitizens in the course of ordinary police encounters and other moments of day-to-day life. In this Article, I analyze the implications of this shift. Automated immigration policing does not simply effect a massive increase in the number of state and local law enforcement officials involved in immigration enforcement — although it certainly does that, on an enormous scale. More fundamentally, the technological architecture of these initiatives radically disrupts the prevailing equilibrium of immigration federalism by effectively mandating state and local participation in immigration policing where previously there had been significant room for voluntary state and local choice along the cooperation-noncooperation spectrum. In the process, these programs also blur the substantive lines between immigration control and criminal justice.
As part of a broader, longer term set of developments concerning technology, surveillance, and information sharing across a range of different policy domains, automated immigration policing constitutes a leading edge in a more basic transformation of immigration enforcement, raising questions analogous to those arising from other forms of technology-based surveillance. Accordingly, I assess automated immigration policing in this context, drawing upon technology-, surveillance-, and privacy-based frameworks to complement and refract the insights of existing immigration scholarship. Finally, I advance principles to inform, guide, and constrain the use of these technologies, urging preservation of zones in society where immigration policing does not take place, restoration of greater scope for state and local choice, and improved transparency, oversight, and accountability in their implementation.