How Big Data and the Surveillance State Collude to Undermine Immigrant Rights

A decade ago, when New Mexico legislators changed the state’s laws so that unauthorized migrants could get driver’s licenses, they had people like Maximo Olivas-Perea in mind.

A longtime resident of Santa Fe, Olivas-Perea did not have the federal government’s permission to live in the United States. But here he was, nonetheless, living in a mobile home near the city’s small airport. Until 2016.

That’s when, after renewing his license—as state law allows migrants to do—his life flipped upside down.

LexisNexis, a company that creates and sells access to enormous digital databases, fed information from Olivas-Perea’s license application into its system. One of the company’s customers, the federal Immigration and Customs Enforcement agency, found Olivas-Perea’s updated address information there and tracked him down. Seven years after moving into the Santa Fe mobile home, Olivas-Perea was propelled into the immigration prison and deportation pipeline thanks to a license renewal.

This is immigration policing in the age of Big Data.

ICE spends handsomely on digital surveillance partnerships. In 2021 alone, the agency spent $388 million on contracts that let it search vast databases created by private companies like LexisNexis.

I can understand why ICE relies on LexisNexis. As an immigration lawyer and researcher, I have used it my entire career to stay up-to-date about changes in the law. As a teacher, I tell my students that LexisNexis is an invaluable resource as they wage legal fights on behalf of their future clients.

Companies like LexisNexis and Palantir have proven themselves savvy technicians capable of turning fantasies about sifting through massive quantities of data into digital surveillance realities.

But it also helps immigration officials buy their way around democracy. States that try to welcome migrants are seeing the federal government pay to access sprawling private databases that snare people who local governments want to protect.

ICE agents and their counterparts in the Department of Homeland Security’s Customs and Border Protection unit turn to private surveillance systems to learn about arrests, scan through phone logs or figure out people’s social media usernames. Much of this information is, in theory, publicly and legally available from government agencies. Police and sheriffs’ departments, as well as county jails, regularly release information about whom they arrest or release. Most court records about criminal prosecutions and convictions are also publicly available. But in reality, none of these are easy to access. Often, it requires visiting courthouses or navigating clunky websites.

That’s where digital surveillance companies come in. They collect and repackage data so it’s easier for customers to make sense of. LexisNexis feeds criminal history records and court documents into its Accurint Virtual Crime Center, which is slickly marketed to law-enforcement clients. But it doesn’t stop there. The subscriber-only portal, which the company says contains more than 1 billion records, also includes data on vehicle registrations and mortgages, credit information, marriage and divorce filings—even fishing permits.

The company’s software can piece together strands of information that aren’t obviously connected more quickly than any human analyst could. For the privilege of accessing that data for a year, ICE agreed in February 2023 to pay LexisNexis $22 million.

LexisNexis sells its products to both ICE and the defense lawyers they face off against in courtrooms. But its competitor Palantir stands firmly with its deep-pocked government customers. Named after J.R.R. Tolkien’s palantíri, the powerful stones from his Lord of the Rings series that can see anywhere on command, the company’s co-founder, billionaire tech industry veteran Peter Thiel and its CEO Alex Karp imagine the company’s software as leveraging its vast stores of information for the public good. “We have chosen sides,” company executives wrote in a 2020 letter to regulators.

In Tolkien’s fiction, the brilliant wizard Saruman, who once stood alongside the motley crew that defended Middle Earth from evil, eventually fell to the sorcerer Sauron’s seductive promises of power. Lured by the possibility of taking control of a world riven by tribalist self-interest, Saruman chose sides. Rather than use his magical gifts for good, Saruman aligned himself with Sauron and the various revolting beasts intent on blanketing Middle Earth under a shadow.

Tapping the palantíri, Saruman ingratiated himself with Sauron, hopeful that the magical technology will give him the influence he craves in the new dark world that the sorcerer imagines. Using the palantíri, Saruman watched as ordinary creatures, from hobbits to humans, went about their lives, learning about their whereabouts and associations, their frustrations and sources of happiness. With the seeing stone at his command, every relationship was a potential weakness, every comment a potential reason to be targeted. Nothing was unknowable.

In the real world, power is just as seductive, and Thiel was not immune. Bucking most of Silicon Valley, in 2016 Thiel bet big on Donald Trump when the future president was nothing more than a reality-TV star with an overactive Twitter account. When it mattered most, Thiel proved he was in Trump’s corner. Within weeks of Access Hollywood releasing footage in October 2016 of Trump boasting that women let him sexually assault them because of his fame, Thiel contributed $1.25 million to Trump’s campaign and aligned groups.

Soon Trump was preparing to move into the White House and Silicon Valley leaders were grappling with the reality that the United States had just elected a president who few among them had backed. With their ability to curry favor with lawmakers in Washington at risk, Thiel stepped in as a liaison between the tech industry elite and the new political elite.

That December, he brought luminaries like Amazon’s Jeff Bezos and Facebook’s Sheryl Sandberg to a Trump Tower meeting where the president-elect showered praise on the Palantir founder. With Thiel sitting on Trump’s left and Vice President-elect Mike Pence sitting on Trump’s right, it was clear who among Silicon Valley luminaries was closest to the political forces preparing to sweep into Washington.

Thiel was part of the trinity of power, and he liked it. But he also liked sitting close to the government contracts Palantir thrives on. A bit player in the digital tech world compared to Amazon and Facebook before Trump’s victory, Palantir quickly found its niche in the emerging data surveillance market—an important component of what the Big Data world refers to as data integration.

Palantir now helps power the federal government’s digital immigration policing—and so far has reaped over $200 million in fees with little change even after Joe Biden became president. As recently as September, ICE renewed its access to Palantir’s data files for $19 million for two years.

In addition to Thiel, the company’s CEO Karp was also at the Trump Tower meeting. An eccentric workaholic with a law degree from Stanford and a Ph.D. in social theory, Karp likes to complain of the Silicon Valley “wunderkinder” while positioning Palantir, Thiel, and himself as better equipped to balance the competing interests that vie for the federal government’s dollars. “We want people who want to be on the side of the West, making the West a better society,” he said at the World Economic Forum in January 2023, a meeting of the world’s economic and political glitterati held annually in Davos, Switzerland.

Just like the risk continues, so too should legislators’ desire to keep ICE and CBP from learning about the most ordinary of activities.

Migrants’ rights activists disagree. Despite Karp’s grandiose vision of the company he leads, activists oppose ICE’s reliance on the digital surveillance tools it sells. In Democratic strongholds, they have turned opposition into law. California, Colorado and Oregon, among others, bar government agencies such as police departments and county jails from sharing data with ICE or CBP that could tip off immigration officials about people who might be in the United States in violation of immigration law. The legislators who supported these laws wanted to make it harder for immigration officials to round up and deport people such as Olivas-Perea.

DHS has fought back. In Oregon, ICE maneuvered around the state’s sanctuary law by signing agreements with LexisNexis and a competitor, Thompson Reuters, to access driver’s license records. In Colorado, ICE turned to LexisNexis’s software to get identification information compiled by local law enforcement agencies. And in California, CBP paid for access to a similar database, ARGIS, run by the San Diego Association of Governments, a group with ties to city and county governments but formally structured as an independent nonprofit.

These contracts—though legal—are essentially an expensive subversion of the democratic process. The Biden administration should do something about it. To start, DHS should stop ICE and CBP from contracting around democracy by instructing agency officials to respect the legal limits that state legislatures impose. Federal law doesn’t require these agencies to search in any crevice they can pay to open, so a simple change in policy could stop them.

The Biden administration also needs to put in place legally binding rules to regulate the digital surveillance industry. In August, the Consumer Financial Protection Bureau announced that it would develop regulations “to ensure that modern-day digital data brokers are not misusing or abusing our sensitive data.” But this is a slow process that will most likely come to a halt if a Republican wins the White House next year. Administration officials need to push the rule-making process forward so that a final rule is in place before the 2024 election.

At the state and local level, elected officials and the advocates that pushed them to put brakes on immigration officials during the Trump years need to remain vigilant that the spirit of laws limiting information-sharing with ICE and CBP isn’t swallowed by the letter of the laws. Companies like LexisNexis and Palantir have proven themselves savvy technicians capable of turning fantasies about sifting through massive quantities of data into digital surveillance realities. And in ICE and CBP they have found willing and deep-pocked partners interested in creatively dancing around the limits that lawmakers impose.

The risk that digital surveillance poses to migrants didn’t end when Trump left the White House. Like Olivas-Perea experienced, immigration officials will use whatever information they have. Just like the risk continues, so too should legislators’ desire to keep ICE and CBP from learning about the most ordinary of activities.

Until there are meaningful obstacles to private companies’ working with immigration officials, ICE and CBP will continue to buy their way around state and local efforts to welcome migrants. And LexisNexis, Palantir and their competitors—unconstrained by the laws that legislatures impose on government agencies—will continue helping immigration officials avoid the messiness of democracy.

If Maximo Olivas-Perea had known that following the law in New Mexico would usher him into ICE’s hands, perhaps he would have driven without a license—testing his luck on the road, rather than risk the hard edge of immigration policing in the digital age.

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