Invoking the deaths of migrant children in Border Patrol custody and proclaiming solidarity with health care providers, freshman Rep. Lauren Underwood, Democrat of Illinois, urged her House colleagues in late September to vote for a measure that she said would help with a public health emergency at the border. “The humanitarian and medical situation on our southern border has reached crisis levels,” Underwood said. She named 16-year-old Carlos Gregorio Hernandez Vasquez, who, last May, was diagnosed by a nurse practitioner in a crowded Border Patrol facility in McAllen, Texas, with the flu and a 103-degree fever. While the nurse flagged his condition to agents, Carlos received no further medical attention. The next morning, after an agonizing night, Carlos was dead, one of at least seven children to die in Border Patrol custody in the past year. In her speech on the House floor, Underwood noted that “medical care for these children has huge, unacceptable gaps.” And since Carlos’s death, at least another seven adults have died in U.S. immigration detention centers. Yet the bill that Underwood was pushing would not actually obligate any improvements in medical care. Instead, it would create a mammoth health and biometric database — accessible to immigration agencies known to create false records that the government later uses against migrants, who are unable to challenge or even see these tainted reports in asylum and other immigration proceedings. Agencies also use migrants’ personal information to track them down for deportation.

Underwood’s bill, the U.S. Border Patrol Medical Standards Screening Act, currently under consideration in the Senate Judiciary Committee, directs Customs and Border Protection, or CBP, to create an electronic health record system accessible to all agencies working in immigration enforcement. The bill does not specify what personal information would be collected and shared. It does not mandate improved care, better oversight of abusive or negligent officers, nor alleviate the unsanitary and dangerous conditions in detention centers. Instead, it authorizes interrogations at the border by federal agents seeking biometric and narrative data under the expansive “health” rubric. It is opposed by the Department of Homeland Security and by immigrant rights groups. The only obvious beneficiaries of the proposed database would be whichever technology firms get the contracts to build and maintain it. In fact, U.S. agencies are already digitally storing all sorts of migrant data, including medical information. In response to questions from The Intercept, a CBP spokesperson said the agency “is currently developing an electronic health record system to facilitate the collection, retention, review and exchange of medical data.” This would seem to refer to data collected by health-care professionals treating people, far more restricted than Underwood’s mandate for CBP to collect the “health data” of all migrants.

Immigrant rights advocates see health data as yet another piece of a digital surveillance dragnet.

Immigrant rights advocates see health data as yet another piece of a digital surveillance dragnet. In a 2018 report, the immigrant advocacy group Mijente wrote that U.S. Immigrations and Customs Enforcement is seeking to “organize mass personal information … for surveilling, arresting and deporting immigrants.” The report explains how the Department of Homeland Security is developing a new cloud-based biometric system and relying on private tech companies’ storage capacity and expertise to more efficiently track and target immigrants. A recent Intercept article similarly highlighted how ICE scours a vast network of databases to target immigrants. Homeland Security agencies, working in concert with private corporations, already share biometric and other personal information with at least seven different companies, including Amazon, Google, IBM, Lockheed, Microsoft, Palantir, and Salesforce. The backstory to Underwood’s bill raises other red flags. It was drafted by Underwood herself, seemingly without the support or even knowledge of prominent immigrant rights attorneys and organizations, and with no experts testifying on it in a committee hearing. One staffer familiar with the bill was overheard on speakerphone, as The Intercept was interviewing a colleague, saying Underwood wrote it at the suggestion of “a contractor.” Underwood’s spokesperson denied this and claims she “came up with the idea herself while on a Congressional delegation visit to the border.” The bill has also never been properly budgeted, despite a potential price tag in the billions. House rules require a budget analysis for each bill, but that never happened with the CBP legislation. Instead, the House Committee on Homeland Security, where Underwood introduced the bill, used the budget analysis for an unrelated 2002 bill, over objections from Republicans. The bill breezed through the House with no discussion of privacy or civil rights concerns. Underwood claimed that “health officials at the border,” including officials from Homeland Security, had told her “that one of the most urgent solutions they need is an electronic health record that can be used by everyone providing medical care at the border.” But Rep. Mike Rogers, R-Al., disputed this, saying on the floor that Homeland Security had “issued an announcement that they oppose this piece of legislation.” A House staffer stated that Underwood’s claim that Homeland Security supported her bill “came from an individual she met on a border trip who allegedly said it would be easy and cheap to implement an interoperable health records system. It was never made clear to me if that person was a DHS employee, contractor, or a medical volunteer.” At the same time, the House has passed two other bills: the Humanitarian Standards for Individuals in Customs and Border Protection Custody Act introduced by Democrat Rep. Raul Ruiz of California, and the Homeland Security Improvement Act introduced by Democrat Rep. Veronica Escobar of Texas. Both were written in collaboration with immigrant-rights groups. They mandate screening and treatment of those in CBP custody “by a licensed medical professional,” an oversight panel, review of ICE and CBP’s compliance with standards of care, as well as yearly evaluations. Ruiz, who has worked as an emergency physician, told The Intercept, “I wrote this public health-focused bill to help ensure that people in the custody of the U.S. government are treated humanely and that children aren’t dying while in the custody and responsibility of CBP.” Ruiz’s bill has been endorsed by 14 medical groups, while the American Civil Liberties Union has praised Escobar’s bill, saying it would provide “meaningful accountability.” No such endorsements or plaudits have been publicly expressed about Underwood’s bill. Asked by The Intercept to name a single group that supported her bill, Underwood’s staff requested time to consult a colleague, but produced no names and did not respond to a follow-up email.

Photo: Carolyn Van Houten/The Washington Post via Getty Images

Public health studies have shown that electronic health records do not improve health outcomes, including for diabetes, HIV emergency room screening, and surgery. Carlos Hernandez Vasquez and at least two other children last year, for example, were diagnosed with the flu and subsequently died, even though Border Patrol already knew of their medical problems. The underlying problem is holding children in jails and not adhering to even the substandard protocols of Border Patrol facilities. An internal government report, published just days after Underwood’s bill was first introduced, highlighted dangerous overcrowding and prolonged detention in cells where Border Patrol failed to provide people with sufficient food, showers, or flushing toilets. The report noted that some adults were kept in standing-room-only cells for up to a month. Underwood invoked these horrors as her bill’s rationale, but a billion-dollar database will not fix such conditions, and experts worry that it could make things worse for migrants. Jacinta Gonzalez, field director of Mijente, said the bill was “expanding powers of surveillance for DHS, an agency that has proven time and time again to not be able to follow constitutional rules, much less protect human and civil rights.” She saw the database as “basically setting up a system of coercion without enough information or consent about what is going to happen with your personal information.” Immigration agents could use information obtained under duress at first contact with the Border Patrol to later track down migrants, share it with regimes from which the migrants are fleeing, or argue that certain details — inaccurately entered or mischaracterized later — contradict information on an asylum claim or other immigration proceeding. Such conflicting information could be devastating to assessments of credibility by immigration judges, who tend to defer to official U.S. government information, even when it is often shown to be inaccurate. The Washington Post recently reported on ICE agents potentially screening biometric data from adults seeking to claim migrant children from government custody. The plan, developed by White House immigration adviser Stephen Miller, would have ICE use that data to make arrests and deport people, an order that clearly contravenes laws restricting the use of refugee programs for immigration enforcement. “CBP cloud info is clearly not safe, or not being used as intended,” Gonzalez said.

“CBP cloud info is clearly not safe, or not being used as intended.”

Paromita Shah, executive director of Just Futures Law, said that Underwood’s bill “sounds innocuous on paper, that the data is objective and untainted. But data is political, and data is valuable.” Shah noted that “this kind of data is never given” to the person it belongs to. “They don’t have access or power over it.” There is already precedent for immigration authorities relying on biometric databases to make immigration decisions based on flawed entries, or otherwise misusing personal diagnostic data. Take the Biometric Identification Transnational Migration Alert Program, or BITMAP, which since 2016 has been sucking in data from children who have crossed paths with immigration authorities outside of the United States. Often that data — collected from, say, unaccompanied Bangladeshi teenagers in migrant camps in Ecuador or Panama — is unreliable, based on bogus passports or other misinformation. Yet ICE has used it to declare such teenagers adults and deny them protections afforded to child migrants. In one case of a child seeking asylum and challenging ICE’s use of bad information shared across the BITMAP system, federal Judge Diane Humetewa in 2018 ruled against ICE, declaring that “these records appear to be questionable at best.” In another example, the Deportation Research Clinic at Northwestern (run by Jacqueline Stevens, one of the authors of this piece) has obtained documents showing agencies regularly using scientifically unsound age assessments based on X-rays of third molars — obtained without consent and in violation of the law and orders by several federal judges. The government’s reliance on databases reduces people and their stories into data that is inaccessible to the individual and almost impossible to dispute. Shah, of Just Futures Law, said that these databases are “rarely about truth trading. Data collection is often a push to a certain conclusion.”

Rep. Lauren Underwood speaks to members of the press ahead of the State of the Union address in the chamber of the U.S. House of Representatives on Feb. 5, 2019, in Washington, D.C. Photo: Zach Gibson/Getty Images