Transcript of The Americans caught in ICE’s web of surveillance

I'm Ayesha Rascoe, and you're listening to the Sunday Story from Up First, where we go beyond the news of the day to bring you one big story. Since President Trump took office last year, the number of Immigration and Customs Enforcement officers has more than doubled, according to the Department of Homeland Security in January. Funding for ICE has skyrocketed. All of these new resources have been used to expand ban law enforcement activities targeting undocumented people across the country. But lawful residents and American citizens are also increasingly getting caught up in these operations. One of those people is Ben, a Minneapolis resident who asked that we only use his first name because he worries the federal government will retaliate against him. Back in late January, Ben was observing ICE operations around the city, something he had been doing for weeks at that point. Point. Ben was on his way home when he received a message that immigration agents had been spotted nearby. Ben and his wife Gabby decided to head to the location.

There were a lot of observers around. People were coming out of their houses. I got out of the car because I was like, you know, gotta go film.

When Ben and Gabby arrived, Ben stood at the side of the road and filmed the officers who had already gotten back inside their car.

It looked like they were about to leave, but they stopped and got out of the car, and that's when I got tackled.

Body slammed?

Yeah. Yeah, it wasn't really a tackle.

Yeah, it was a body slam. He picked you up and slammed you down.

In the video of the incident, you can see a masked federal officer run at Ben and slam him to the ground. Ben was detained and held in custody for 3 hours before officers released him. They fingerprinted him and took his photo.

And then that's when the DNA happened.

An officer approached Ben with something that looked like a Q-tip and used it to swab the inside of Ben's cheek to collect his saliva.

It was super casual. It was just like, okay, yes, we're gonna— you're gonna take this now. And I was like, okay.

It all happened so fast, Ben didn't realize what was happening. A few days after getting tackled, Ben found out that the encounter had left him with 3 cracked ribs. And beyond the physical toll the incident had on his body, he's also wondering what ICE is doing with his DNA information. The whole ordeal has left him with lasting psychological stress.

I don't really have the words for it, but you know, it's just not something that should have ever happened.

When we come back, a look at the growing web of tracking and surveillance by ICE. And the citizens getting tangled up in it. Welcome back to The Sunday Story. Today we're looking at the expanded role of Immigration and Customs Enforcement, or ICE, across the country in President Trump's second term. Joining us today is NPR's Meg Anderson and Cat Lonstorf. Meg, Cat, welcome to the podcast.

Hey, thanks for having us.

Thanks for having us.

So, we just heard the story of Ben, whose DNA was taken from him after he was arrested by ICE agents in Minneapolis. Meg, you were the one who spoke to Ben, and you also live in Minneapolis and have been reporting on the recent ICE surge there. Um, I have to ask, do you have any idea, like, what happened to Ben's DNA or why they were collecting it?

You know, we don't know. And actually, when I reached out to the Department of Homeland Security, the agency that oversees ICE, you know, they didn't respond to questions about why they're collecting this DNA, where it's going, how it's being used. We do know that in the past, DNA collected by ICE and also Border Patrol has gone into the FBI's policing database. And I feel like I should note, you know, legally, the federal government does have broad authority to take the DNA of people it's arrested. And actually, the DHS spokesperson that I spoke I spoke to told me that federal law actually requires federal law enforcement to collect DNA samples from anyone arrested or facing charges. But lawyers I spoke to said that's worrisome, you know, in part because DNA is such a big deal. It is much more invasive than a fingerprint, and it can tell you all kinds of things about a person, right? Their ancestry, health conditions they're predisposed to, even personality traits. And it's not just limited to that one person. Here's Erin Murphy. She's a law professor at New York University.

You're not just taking their DNA right in this moment in time, you're taking their children's DNA and their children's children's DNA and their children's children. I mean, DNA is a fairly new science, and until we kind of settle into it a little more and understand it better, I would say mass collection of genetic material by governments or frankly private parties is not something we want to be indulging.

Murphy said she thinks the federal statute that allows DNA collection after an arrest for pretty much any crime is overly broad. And there's some precedent for that opinion. The Supreme Court hasn't weighed in on this specific federal law, but about a decade ago, they did rule on a case about a Maryland state law and said that taking DNA is constitutional when someone has been arrested for a serious crime. And beyond that, there's also a concern about these arrests themselves, the ones that, you know, we looked into in Minnesota and elsewhere, you know, what happens if the arrest itself isn't a legal arrest, right? If you were doing something protected, for example, by the First Amendment, like peacefully protesting, what happens to that DNA? So here's Stanford Law Professor Oren Kerr.

[Speaker:OREN KERR] The officer says, I think you've crossed the line, I'm going to arrest you. I think you threatened physical force, therefore under this law, I'm allowed to do the DNA test. It turns out the officer was wrong, but the DNA test has been conducted and the information's been entered into the database. What then?

So is Ben the only person this has happened to?

Definitely not. So we decided to publish a story about DNA collection, um, after we found 6 people in Illinois, Oregon, and others in Minnesota who described similar occurrences in recent months, right, of ICE taking what appeared to be a DNA sample after arresting them while they were protesting the Trump administration's immigration campaigns. We decided that was enough for our audience, right, to know that this was happening. But since then, you know, I've had people reach out to me and tell me this has happened to them too. And I found even more examples in Illinois, California, and more people in Minnesota too.

So Cat, you were also reporting in Minneapolis during the recent ICE surge. What other tactics did you hear about ICE using against Americans when you were out there reporting?

Yeah, we spent time poring over court records and interviewing people and collected dozens of stories of people who have been caught recently in this giant surveillance web that DHS and specifically ICE has been spinning. And there were some patterns that started to emerge, specifically with protesters or legal observers during the federal surge in Minneapolis. I'll give you an example, Ayesha. I talked to a woman there named Emily, who asked to only be identified by her first name name because she fears retribution from the federal government. And she described an evening in late January. She was following an ICE vehicle as a constitutional observer, much like Ben—that's an action protected by the First Amendment—when it abruptly stopped. A masked federal agent leaned out the window of that vehicle, took a picture of her and her car, and then yelled her name and recited her home address to her. She said it really shook her. Their message was not subtle, right? They were in effect saying, "We see you. We can get to you whenever we want to." And it did scare me. Emily says she has no idea how those ICE officers pulled up her information so quickly, but we heard stories like this over and over again.

Yeah, we talked to other people who were out in their cars just like Emily had been, right? Following, observing ICE officers, and had those officers take it one step further and actually lead them to their own homes. One observer in Minneapolis, Will Stancil, told me he's had officers lead him back to his own home twice. Once he was with other people and kind of laughed it off, But here's what he told me about that second time.

The other one was much scarier because it was me and there were 3 ICE cars that surrounded me and they led me back to my house. That was— it was just me alone. And, you know, I was frightened. I didn't know what was gonna happen.

Another observer I spoke to named L— she didn't want to use her full name— told me she has been led to her home and that immigration officers have addressed her by the name of her wife, who her car is registered under.

Here she is. They would just get out their phones and then come and stand right in front of my car and take pictures of me and take pictures of our license plate. And they frequently would come up to my vehicle and pound on the glass.

00:09:22

And this kind of thing hasn't just been happening in Minneapolis. There was an incident that went viral of a woman in Maine named Colleen Fagan who recorded an interaction she had with ICE agents where she was filming them, again, in action protected by the First Amendment. And one of the agents pulled out his phone and started taking pictures of both her and her license plate. [Speaker:ASHLEY FAGIN] Yeah, why are you taking my information down?

00:09:44

Because we have a nice little database. [Speaker:ASHLEY FAGIN] Oh, good.

00:09:47

And now you're considered a domestic terrorist.

[Speaker:ASHLEY FAGIN] We're videotaping you?

00:09:51

Ayesha, you can hear the agent there saying that ICE has a, quote, "nice little database," and that Fagin is now, quote, "considered a domestic terrorist." Okay.

I think I might have even heard of this video.

Like, yeah, it was pretty viral. Yeah.

So, I mean, is there a database of quote unquote domestic terrorists?

So DHS has denied the existence of a database multiple times. Congressman Lou Correa, a Democrat from California, asked Kristi Noem about this. She's now the former DHS secretary. He asked her about it during a hearing in the House.

Earlier this year. One of your ICE officers in Maine recently told an observer that they're creating a database. Are you creating a database, ma'am, of Americans? No, we are not creating a database.

And Todd Lyons, who's the acting director for ICE, has also denied it in front of Congress. And DHS also denied it to us in a statement we got from them.

And we did ask DHS why agents are taking pictures of protesters' faces or license plates, and they did not respond to that question when we asked them. Instead, the agency said in a statement that DHS its quote, "will not reveal law enforcement methods or tactics." And, you know, despite them denying it, it could be that these are semantics, right? Maybe a contractor has a database, maybe it's not technically a database. These are still things that we don't know. But it's a lot of these unknowns that make it that much more unsettling, right? That's something Nathan Wessler, he's the deputy director of the Speech, Privacy, and Technology Project at the ACLU, pointed out to us.

Nobody should have to wonder if they're merely being intimidated or actually, you know, being subjected to an invasive biometric scan. Uh, that's really just incredibly corrosive in what is supposed to be a free and open society.

Okay. So what do we know about the tools that DHS is using? Yeah.

So we, we know about some of the technology being used, and a lot of that comes from reporting from our colleague, Jude Joffe Block, who's wonderful. Uh, for instance, DHS has an app that uses facial recognition technology to identify people. They also have tools that use location data to identify people, almost like a Google Maps type of thing. They also aggregate data from other government databases to learn as much as they can about the people they're looking for, things like home addresses. We know some of this because an ICE agent described these tools under oath in a court case we found. And You know, it's important to kind of recognize that the huge influx of federal funding to this agency has allowed the government to develop or buy a lot of this technology. And the focus of this interview, of course, is on citizens, right? And how they're being affected. But these tools that we know about, we have a much clearer sense of how they're being used on immigrants. We don't yet know how much they're being used on citizens. That's kind of what Nathan Wessler was getting at. So I would say for citizens, it's more like clues, right, that point us towards these tools.

They're taking photos, they know information about people quickly, like names and addresses, but we don't totally have a clear picture yet.

So, so far you're talking about surveillance that's happening in real life, like on the streets of cities, people are, you know, observing ICE, and then they're, you know, ICE is reciting information back to them and seeming to know their personal information or even collecting DNA. Yeah. What about, um, online? You know, is ICE looking at what people are, like, posting or talking about online or on social media?

Oh, absolutely. Uh, we're seeing that play out a lot through a tool called an administrative subpoena, which DHS is sending to tech companies like Google or Meta demanding personal information to unmask anonymous accounts. Administrative subpoenas can be issued by a federal agency like DHS the DHS without a judge or a grand jury. They've typically been used with tech companies in the past for investigations involving serious offenses like child sexual abuse material. But lately, we've seen a big uptick in them being sent specifically about anonymous accounts that are tracking ICE activity or are critical of ICE.

And to be clear, because of the First Amendment, these subpoenas can't be purely about retaliating against speech the government doesn't like, right? People have a constitutional right to criticize the government and to do so without revealing their identity, the reason for these subpoenas, you know, for that constitutional reason, the subpoenas often list something like officer safety as the reason why they're being sent to those companies.

But privacy and civil rights experts we've talked to say that they threaten free speech. We talked to Steve Loney. He's an attorney at the ACLU in Pennsylvania who has represented several people who have been subpoenaed in this way in recent months. And he told us that a pattern is starting to emerge.

The pattern appears to be as soon as people become vocal critics of what's happening in immigration enforcement, they get an email that— from their social media company that says the government has requested your data.

Do you have any sense of how common this pattern is? Like, how many people are getting these administrative subpoenas?

Yeah, it's a good question. And the scale of this is still really unknown at this point. The ACLU has helped a handful handful of people fight these administrative subpoenas in court, but DHS has backed down and withdrawn the subpoena every single time. But it's possible many more people got emails from companies like Meta letting them know that some kind of subpoena had been issued, but people might have missed it. I talked to one person. His name is Sherman Austin. He lives in Long Beach, California. He runs an account called StopICE.net. It posts a lot of posts critical of ICE. He shared a post back in September that identified an ICE agent who was operating in California. It identified this agent all through publicly available information, like a photo taken in public of the ICE agent wearing his uniform with a name tag on it, stuff like that. And it was a day or two later that he got one of these emails from Meta saying that law enforcement had requested his information. And he didn't quite believe that email at first.

It was really a vague email. I thought at first, is this like a scam, or is this some kind of phishing thing going on?

He had a couple email exchanges back and forth with Meta, finally got a redacted copy of the subpoena that was sent from DHS. The reason given was, quote, officer safety or doxxing, which he said was surprising to him since the post in question was all publicly available information. Sherman Austin did take that to court, and DHS did withdraw that subpoena. But like we heard him say, the email was really vague, and it could be that a lot of people are just missing it.

When we come back, are these new tactics targeting American residents and citizens legal? Welcome back to The Sunday Story. We're talking to reporters Meg Anderson and Cat Lonstorf about how the tactics of Immigration and Customs Enforcement have evolved since the start of Trump's second term. So Cat and Meg, you've laid out all these ways ICE is increasing their tracking and surveillance capacities, DNA swabs, databases that use facial recognition technology. License plate scanners. And as we know, the government has engaged in surveillance of U.S. residents and citizens in the past. You know, I'm thinking of the civil rights movement of the '60s, or Muslim communities after 9/11. But this sort of surveillance isn't what we think of when it comes to ICE's mandate. So I have to ask the question, is all of this legal?

Yeah, you know, you're totally right, Ayesha, too. Surveillance in this country is nothing new. It's also not new at DHS, right? That's part of the reason the department was created after 9/11. And when it comes to the surveillance we're talking about today, the short answer to whether or not it's legal is basically like the courts are still figuring that out. There are two constitutional amendments that come to mind the most. One is the Fourth Amendment that protects people against unreasonable searches and seizures. Here's Oren Kerr again, the Stanford law professor.

Traditionally, the Fourth Amendment has allowed the government to follow people in public, to take pictures of people in public, to track them out in the world. Um, and so automated license plate readers and, um, sort of cameras in public that might have facial recognition software attached to them, uh, so far courts have generally said those are constitutional under the Fourth Amendment.

But he said courts also do pay attention to technological advances and they pay attention to context, right? So let's say for instance, law enforcement is using cameras or something to track people over time as they move around a city.

And what courts have suggested is like, usually this is not a search, but maybe if there are a lot of cameras and the government can assemble a really careful picture of what someone's doing with their life, at some point it gets intense enough that it becomes a constitutional search.

And, you know, that actually happened in a Supreme Court case in 2018. The court said that police need a warrant to obtain historical cell phone location information. And actually, the court is set to hear another case about cell phone location data this year. That will likely happen before June. So, you know, basically lawyers we spoke to said some of these tools help DHS access information that would cross those lines, right? That they would otherwise need a warrant for. But that is for the courts to decide.

Other legal experts we spoke to brought up threats to the First Amendment, like we've talked about. That comes up in the case of those subpoenas and the online criticism. Generally, the right to anonymity is protected. And there are lawsuits in states like Minnesota and Maine alleging that when ICE officers lead people to their homes, things like that, that that amounts to intimidation and violates a protester's freedom of expression. Here's Steve Loney again with the Pennsylvania ACLU.

The ability to criticize the government anonymously is baked into our First Amendment rights. So for some people, the way that they choose to exercise their First Amendment right and to do so without the fear of government retribution is to remain anonymous.

So we're just now seeing a lot of these cases make it to the courts, and then the courts are going to have to decide where the boundaries are around a lot of these laws. I mean, that's also something that we see happen with technology, right? All the time. This is a lot of new technology, and a lot of it the law is playing catch-up on.

So what happens now? Like, where is all of this increased surveillance pushing us as a society? Yeah.

So I feel like in Minnesota, Cat and I both saw the sort of the, like, immediate effects of this, right? And what we saw in Minneapolis was the use of these tools or, you know, the perceived use of these tools, right? ICE taking photos of people, showing them, you know, they know where they live, etc. Those things really intimidated people. And it very quickly created a lot of fear and a lot of paranoia. I would say, you know, justified paranoia in the community. A lot of people felt really suffocated, like they were unsafe to just be in their own city. For a lot of people, you know, it felt very quickly like living in a police state, like they were always being watched.

And, you know, that can have a kind of chilling effect. If you think you might be surveilled or arrested and have your DNA taken or subpoenaed, you might be less likely to show up at a protest, to observe federal law enforcement, or post something critical online. Again, all of those actions that are protected by the Constitution. Yeah.

And I think more broadly, Minneapolis was sort of like a test case, right, of what using these tactics en masse against citizens would look like. And it should be a clue moving forward for, you know, what we could expect in other places in the country.

Yeah, absolutely. You know, one thing we've been documenting across the newsroom here is the pattern of escalation we've seen from city to city during these federal immigration operations under this administration, whether that's the scope or the increasingly aggressive tactics or the surveillance. Now, we've seen all these examples in Minneapolis and other cities and can only assume that it will escalate when and where the next ICE operation focuses.

Well, Cat and Meg, thank you to you both for doing this important work, being there on the ground and Minnesota and letting us know what's going on. Thank you.

Thanks for having us. Yeah, you're welcome.

Thank you.

That was NPR's Meg Anderson and Cat Lonsdorf. NPR's Ju Jaffe Block also contributed to this reporting. This episode of The Sunday Story was produced by Andrew Mambo. It was edited by Liana Simstrom, With help from Alina Hartounian, Gigi Duban, Eric Westervelt, and Brett Neely. The engineer was Robert Rodriguez. The Sunday Story team also includes Justine Yan and Jenny Schmidt. Our executive producer is Irene Noguchi. I'm Aisha Roscoe, and Up First is back tomorrow with all the news you need to start your week. Until then, have a great rest of your weekend. Them.