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The use of personal data and identification technology in immigration enforcement is not new. In the United States, the practice can be traced back as early as the 1798 Act Concerning Aliens, which required the documentation of personal data of all non-citizens entering the country by boat. The Chinese Exclusion Act required that all Chinese immigrants register for certificates which listed “all facts necessary for the identification of such Chinese laborers.” The use of identification technology for immigration purposes in the United States was discriminatory in its early use—the registration requirement was created to specifically track and deport Chinese people from the country, a reflection of the anti-Chinese sentiments driving immigration policy at that time.

Today, technology makes the collection, sharing, and analysis of massive amounts of personal data easier than ever before. Identification technologies and personal data are still used to find, surveil, arrest, and expel migrants in countries all over the world, oftentimes with discriminatory intent and effect. Following the September 11, 2001 attacks in the United States, the expansion of surveillance and intelligence gathering technologies and measures under the name of counter-terrorism, both domestically and globally, has had enormous influence on the use of technology in immigration enforcement. Extensive evidence has demonstrated that these new digital technologies are used in ways which violate the rights of migrants around the world The operations of the U.S. Immigration and Customs Enforcement (I.C.E.), the enforcement branch of the Department of Homeland Security, have been identified to be responsible for numerous violations of human rights, including the right to liberty and security of persons, the right to freedom of expression, the right to privacy, the right to an effective remedy, and the right to non-discrimination, among other fundamental human rights.

Immigrant advocates and other human rights organizations have scrutinized the relationships between I.C.E. and data technology corporations. The partnerships between I.C.E. and the parent and sibling companies of the legal databases LexisNexis and Westlaw are particularly relevant for the legal community in the United States. On February 25, 2021, LexisNexis Risk Solutions signed a $22.1 million contract with I.C.E., providing the immigration enforcement agency with access to over 37 billion records of personal data as well as use of their propriety data analysis technology, Accurint. LexisNexis’ sale of data technology to I.C.E. raises questions about the company’s liability for human rights violations stemming from I.C.E.’s use of its technology. This annotation briefly discusses LexisNexis’ data-sharing practices with I.C.E., and how the company contributes to a number of human rights violations through this relationship. This annotation concludes that LexisNexis, under international standards for businesses, has an obligation to (1) sever its relationship with I.C.E.; (2) stop and prevent human rights violations connected to I.C.E.’s use of its services; and (3) provide adequate remediation for any adverse human rights impacts.

LexisNexis’ contract with U.S. Immigration and Customs Enforcement:

LexisNexis’ February 2021 contract with I.C.E is intended to replace the immigration enforcement agency’s use of similar database and analysis technology, provided by Thomson Reuters, known as Consolidated Lead Evaluation and Reporting (CLEAR). I.C.E.’s use of CLEAR has been crucial to its deportation efforts. I.C.E. has relied on CLEAR since 2015 to find targets by tracking the movements of immigrants through its massive license plate recognition technology. I.C.E. has combined the use of Thomson Reuters’ technology with Palantir to automate policing decisions regarding who to target for its investigations and enforcement actions. The relationship between I.C.E. and LexisNexis is not new. RELX, the parent company of LexisNexis, and its subsidiaries have provided I.C.E. with information technology for over a decade. The most recent contract grows the massive data technology corporation’s relationship with I.C.E. by providing the agency with five years of access to enormous amounts of personal data on more than 276 million consumers in the United States, social networking information, credit reports, license plate numbers, and the technology to use this trove of data to find a single person quickly and accurately—all for the price of $22.1 million.

The contract has not been publicly released, and LexisNexis has not been transparent about its contents. Researchers, advocates, and journalists have identified that the contract provides I.C.E. with “billions of different records containing personal data aggregated from a wide array of public and private sources, including credit history, bankruptcy records, license plate images, and cellular subscriber information.” It also provides I.C.E. with the technology to locate immigrants and conduct raids, arrests, and deportations at a massive scale.

LexisNexis’ obligations under international human rights standards:

LexisNexis’ human rights responsibilities:

As affirmed by the United Nations Human Rights Council, all businesses have a responsibility to respect human rights. LexisNexis is no exception. As a signatory of the United Nations Global Compact, LexisNexis has expressly committed to respecting human rights and ensuring that it is not complicit in human rights abuses. The Guiding Principles on Business and Human Rights, unanimously endorsed by the Human Rights Council in 2011, details what companies must do to meet its international human rights responsibilities. Businesses are required to assess the risks of negative human rights impacts, take actions to prevent and mitigate those impacts, track the effectiveness of its actions, and publicly communicate how these impacts are being addressed. In addition, they must provide remediation to those affected.

The primary determinant of a business’s responsibility to address negative human rights impact is the manner in which the actual or potential negative human rights impact connects to the business. In all instances, businesses have a responsibility to take at least some steps to stop a human rights violation. If a business causes or may cause a negative impact on human rights, it must stop doing so and prevent any future violations. If it contributes to or may contribute to an adverse human rights impact, it must similarly stop or prevent its contribution and use its leverage to mitigate any remaining impact by other contributing parties. If a business does not cause a negative impact on human rights, but an impact is linked to its operations, products, or services, and caused by a party to which it has a business relationship, the business must use its leverage to mitigate the impact, and if unsuccessful, consider ending the relationship with the violating entity. If a business is causing or contributing to negative human rights impacts, it must also provide remediation for any such effects associated with its operations.

LexisNexis is in violation of its obligation to address the human rights impacts connected to its data-sharing relationship with I.C.E. The company contributes to the violations of the human rights of immigrants and other people subjected to immigrant enforcement action through I.C.E.’s use of its information and data analysis technology. LexisNexis has not stopped or prevented its contribution, nor has the company used its leverage to mitigate I.C.E.’s violations of human rights or to provide remediation. Further analysis is needed to determine whether the company is independently causing other violations of human rights, such as the right to privacy. If LexisNexis is independently causing human rights impacts through its sales of billions of records of personal data, additional obligations for the company to respond to and remedy such impacts may arise.

LexisNexis is contributing to violations of a number of human rights through I.C.E.’s use of its technology:

By providing I.C.E. with the data and technology to conduct detentions and deportations, LexisNexis is contributing to violations of numerous human rights, including violations of the right to liberty and security of persons, the right to freedom of expression, the right to privacy, the right to an effective remedy, and the right to non-discrimination, among other fundamental human rights. I.C.E.’s abusive practices are widely-reported, meaning LexisNexis almost certainly knew of I.C.E.’s human rights record prior to entering into the February 2021 contract. Regardless of whether they had actual knowledge of I.C.E.’s practices, LexisNexis had an obligation to conduct a thorough assessment of possible human rights impacts that may connect to its services with I.C.E. Now that the contract is in effect, LexisNexis has an ongoing obligation to assess possible or actual human rights impacts that are connected to their services. Given the well-documented use of similar technology by I.C.E. to effect enforcement actions that have caused human rights violations with little oversight, LexisNexis should have known of the potential human rights impacts of selling I.C.E. access to its data and technology.

I.C.E.’s practice of mass deportations has violated a number of human rights. Between 2010 and 2018, I.C.E. deported hundreds of thousands of people without any judicial review, violating several rights, including the right to liberty and security of persons. I.C.E. has also used data technology to target, identify, detain, and deport in retaliation thousands of immigrant advocates, violating their freedom of expression, their right to privacy, their right to an effective remedy, and their right to non-discrimination. I.C.E. also violates the right to be free from arbitrary detention through its use of “I.C.E. holds,” or immigration detainer requests, which asks law enforcement to detain a person for up to forty-eight hours beyond the time when they would ordinarily be released. As stated by the American Civil Liberties Union, this practice “imprisons people without due process and, in many cases, without any charges pending or probable cause of any violation.” In addition, the terrible and well-documented conditions in I.C.E. detention facilities across the United States were exacerbated by COVID-19, making 2020 the deadliest year for those in immigration detention. The conditions in these facilities violate the right to life, the right to liberty and security of persons, and the international minimum standards for the treatment of prisoners.

LexisNexis contributes to I.C.E.’s human rights violations by providing both the information and the technology that the agency needs to efficiently and effectively identify, surveil, arrest, detain, and deport immigrants en masse. Just Futures Law and Mijente explained that

these tools go far beyond the use cases of a simple database. Without data analytics tools like CLEAR and Accurint, ICE would need to gain access to dozens of different databases that may not be compatible and then manually search them over and over to find information and connections in a case. CLEAR and Accurint streamline and greatly enhance this process.

Although surveillance technology has been used by I.C.E. for decades, the use of these advanced data analytics tools is essential to I.C.E.’s practice of mass deportations. I.C.E deports more than 200,000 people every year, and the sheer number of deportations is a major factor contributing to I.C.E.’s human rights abuses. An operation at that scale relies upon the denial of due process to a significant number of people. Without tools like Accurint, I.C.E. would not be able to identify, locate, detain, and deport at the scale it does. LexisNexis’ services, and others like it, have become an essential facilitator of I.C.E.’s human rights violations.

It is particularly alarming that evidence indicates that the data and technology LexisNexis provides to I.C.E. contains significant errors, increasing the already substantial risk that I.C.E. may use this data to identify and deport the wrong person. Between 2010-2018, I.C.E. wrongfully deported over 8,000 people with pending immigration determination proceedings, and another 102 people who had already been granted a benefit which protected them from deportation. Between May 2015 and February 2016, six percent of the requests that I.C.E. issued were for people who were ineligible for immigration enforcement action, including U.S. citizens. In 2010 alone, I.C.E. detained or deported more than 4,000 U.S. citizens. The errors that LexisNexis’ technology contains will only exacerbate the substantial number of mistaken detentions and deportations.

LexisNexis’ contract with I.C.E. may also violate the rights of immigrants to access essential services. LexisNexis offers access to a database of sensitive information from credit bureaus and utility companies, which the company has highlighted to be “[c]apable of evaluating over 240 million consumers including more than 80% of thin/no file and other ‘emerging’ populations (i.e., Millennial & Hispanic).” Although, it is unclear whether Accurint currently provides I.C.E. access to this database, it is not difficult to imagine this possibility considering that I.C.E.’s partnership with Thomson Reuters involved the provision of this information. Even though the National Consumer Telecom & Utilities Exchange announced that it would no longer allow new utility data to be shared with I.C.E, existing utility data retained prior to October 2021 will still be available to I.C.E. If Accurint had provided I.C.E. with access to personal utility data, this would be a violation of immigrants’ rights to access essential services services such as the internet, phone services, and driver licenses, because accessing basic utilities may place them at risk of deportation. Because immigrants would be disproportionately affected by the potential “chilling impact” of LexisNexis’ data technology, this may also raise questions about the company’s responsibility for violations of the right to non-discrimination.

LexisNexis must take action to stop and address these human rights violations:

International human rights standards for businesses require LexisNexis to terminate its relationship with I.C.E. in order to stop contributing to I.C.E.’s human rights violations. LexisNexis must also use its leverage to mitigate the risk that I.C.E. will continue to violate the human rights of immigrants, and it must provide remediation for any adverse human rights impacts associated with the use of its services.

The Guiding Principles on Business and Human Rights emphasizes that the severity of the actual or potential adverse human rights impact is the most important factor in determining the scale and complexity of measures that a business must take to address the adverse human rights impact. Severity is judged by its “scale, scope and irremediable character.” The scale and scope of the potential human rights impacts are enormous. LexisNexis provides I.C.E. with the data and tools to identify, track, and locate as many as 276 million people in the United States. I.C.E.’s enforcement actions are marred by widely-reported and rampant human rights abuses. The immense severity of these violations is compounded by the fact that deportations are essentially irreversible. Once someone is deported, return is almost impossible. Due to the severe potential adverse human rights impacts of detentions and deportations and the heightened vulnerability that immigrants bear regarding violations of their rights, LexisNexis must take comprehensive and immediate action to stop contributing to these human rights abuses.

International standards make clear that the responsibility of LexisNexis does not end with stopping its sharing of data and analytics technology with I.C.E. It must also “use its leverage to mitigate any remaining impact (by other parties involved) to the greatest extent possible.” LexisNexis must also provide remediation for all past, current, and future harm that results from their relationship prior to its end. LexisNexis should consult immigrant communities and advocates on what would be an effective remedy. An operations-level grievance mechanism or a similar measure is likely to be insufficient for LexisNexis to meet its responsibilities. The human rights impacts are likely to be severe because it may include wrongful deportations by the United States, a grave consequence not resolvable by a corporate grievance mechanism. Additionally, the opacity of LexisNexis’ data-sharing relationship with I.C.E. and how exactly I.C.E. uses this data increases the likelihood that the full extent of the human rights impacts will not be known. At a minimum, LexisNexis should provide full support, within its abilities, to the efforts of immigrants and advocates to stop immigration enforcement actions which may have involved the use of data or technology provided by LexisNexis. Additionally, LexisNexis should cooperate with immigrants and advocates in their efforts to seek accountability for human rights abuses that may have occurred in connection with its relationship with I.C.E.

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