Wed Jan 14, 2015 by Anil Kalhan
ARTICLE: Immigration Surveillance, 74 Maryland Law Review 1 (2014)
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information for immigration control and other purposes. This information is aggregated and stored by government agencies for long retention periods in networks of interoperable databases and shared among a variety of public and private actors, both inside and outside the United States, with little transparency, oversight, or accountability.
In this Article, I theorize and assess this underappreciated transformation of the techniques and technologies of immigration enforcement — their swift proliferation, enormous scale, likely entrenchment, and broader meanings. Situating this reconfiguration within a larger set of developments concerning surveillance and technology, I explain how these technologies have transformed 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. The technologies that enable this immigration surveillance regime can, and do, bring great benefits. However, their unimpeded expansion erodes the practical mechanisms and legal principles that have traditionally constrained aggregations of power and protected individual autonomy, as similarly illustrated in current debates over surveillance in other settings. In the immigration context, those constraints have always been less robust in the first place. Accordingly, I urge more constrained implementation of these technologies, to preserve zones where immigration surveillance activities do not take place and to ensure greater due process and accountability when they do.
A complete understanding of immigration enforcement today must account for how the evolution of enforcement institutions, practices, and meanings has not simply increased the number of noncitizens being deported, but has effected a more basic transformation in immigration governance. As the institutions of immigration surveillance rapidly become integrated into the broader national surveillance state, scholars, policymakers, advocates, and community members need to grapple more directly with the implications of that reconfiguration.