New FBI Documents Shed Light on the Answer

by Sunita Patel and Scott Paltrowitz Commondreams

Supreme Court Justice Stephen Breyer equated GPS surveillance with the ultra-repressive government monitoring in George Orwell’s 1984 this week during the oral argument in United States v. Jones (.pdf). The case asks whether the use of a GPS tracking device to monitor an individual’s movements without a warrant violates the Fourth Amendment’s ban on unreasonable searches and seizures. But between the potential to monitor all public movements via GPS and the FBI’s ever-expanding Next Generation Identification (.pdf)(NGI) system, which collects and stores all aspects of our personal physical characteristics— our biometric data — Big Brother is already upon us.

NGI is a massive database program that collects and stores personal identifying information such as fingerprints, palm prints, iris scans, scars, marks, tattoos, facial characteristics, and voice recognition. Data can be collected not only from arrested individuals, but also from latent prints (fingerprints left behind at a crime scene or anywhere else) or through handheld “FBI Mobile” biometric scanning devices. Worse than the FBI accessing all your personal data, when NGI becomes fully operational in 2014, other federal agencies will gain access to the bio-data without your knowledge or consent.

Documents that the FBI turned over only after a Freedom of Information Act (FOIA) lawsuit filed by the Center for Constitutional Rights, the National Day Labor Organizing Network, and the Benjamin Cardozo Immigrant Justice Clinic reveal that the FBI views massive biometric information collection as a goal in itself. The FBI’s Criminal Justice Information Services division (CJIS) has already conducted a test study with latent fingerprints and palm prints, collected more than one million palm prints, scheduled an iris scan pilot program, and plans future deployment of technology nationwide to collect other biometric data like scars, marks, tattoos, and facial measurements (.pdf). What’s more, the government continues to expand domestic use of FBI Mobile (.pdf) scanners initially used in Iraq and Afghanistan.

The newly-released documents also reveal that not only do the Department of Homeland Security (DHS) and the Department of Justice already have access to this personal information, but so do the Department of Defense, the U.S. Coast Guard, foreign governments, and potentially the Nuclear Regulatory Commission. Indeed, CJIS has information-sharing relationships with more than 75 countries.

This ubiquitous world-wide surveillance of anyone and everyone should serve as a wake up call for what the future may hold. Rapid deployment of the new technologies uncovered in the FOIA records brings us closer to an extensive and inescapable surveillance state, where we blindly place our hands on electronic devices that capture our digital prints, stare into iris scanning devices that record the details of our eyes, and have pictures taken of different angles of our faces so that the FBI and other federal agencies can store and use such information.

Some state and local officials have heavily resisted (.pdf) sharing the fingerprints of non-citizens with immigration authorities, as it can cause community members to fear reporting crime, break up families through unjust detentions and deportations, and lead to law enforcement abuse of authority or racial profiling. Yet the FBI and DHS have prohibited states and localities from placing limits on the FBI’s use of the data. Recently, high-ranking Immigration and Customs Enforcement official Gary Mead was asked by local advocates at a debate in New York why the agency insisted on overriding the governors’ request to prevent federal sharing of immigrant prints. He responded that allowing the FBI to share data with other agencies is the “price of admission” for joining “the FBI club.” But none ofus–those paying the price of having our personal data collected, analyzed, and shared–want the FBI club to indiscriminately share our personal information.

Expanding NGI raises numerous concerns about government invasion of privacy (because of the access, retention, use, and sharing of biometric information without individual consent or knowledge), the widening of federal government surveillance (the NGI database will hold information that can be used to track individuals long into the future), and the increased risk of errors and vulnerability to hackers and identity thieves.

Federal agencies don’t like to admit that they make mistakes, but we know it happens. Take for example Mark Lyttle, a United States citizen who was mistakenly deported and sent to five different countries in four months after a criminal corrections administrator erroneously typed “Mexico” as his place of birth. Or U.S.-born Brandon Mayfield, who was wrongly accused of perpetrating the 2004 Madrid train bombing and was held in police custody for two weeks based on an alleged match between his fingerprints and latent prints from the crime scene, a match that was later deemed inaccurate.

These types of mistakes are even more likely to occur as the FBI relies upon new, questionable physical-trait scanning technologies. One recent study (.pdf)found that when used among large populations, facial recognition will inevitably lead to misidentifications because of the lack of variation across individuals’ faces. Indeed, John Gass of Massachusetts was the victim of facial recognition technology errors when his driver’s license was revoked based on a facial recognition system that determined his authentic and legitimate license was fake.

These disturbing examples will become only more frequent and have more serious consequences as the database grows and more federal agencies and foreign governments join the “FBI club.” The rapid and massive expansion of NGI’s collection, storage, and sharing capabilities is moving us closer and closer to the type of pervasive surveillance referenced by Justice Breyer. We can only wonder, is Orwell’s Thought Police next?

An annotated index of newly released FOIA documents related to NGI and the FBI’s role in Secure Communities, along with the documents, is available at: read previously released documents related to NGI and a related fact sheet, go To learn more about Secure Communities and how you can prevent its implementation in your community or state, For more information about the case NDLON v. ICE brought by CCR, the National Day Laborer Organizing Network and the Benjamin Cardozo Immigrant Justice Clinic, visit CCR’s case page.

Sunita Patel is currently a Staff Attorney at the Center for Constitutional Rights, where she litigates racial profiling, immigrant justice, and other human rights issues

Scott Paltrowitz is a Volunteer Attorney at the Center for Constitutional Rights.