Get FISA Right

We received notice from Restore the Fourth about a comment period on a DHS change to the agency’s record system. Disturbingly, they have already made the change, but now are asking for retroactive approval. Sorry, no approval from us!

There are just 3 days left to comment, so have your say at this link.

Here is the text of Restore the Fourth’s e-mail announcing the comment period, which I sadly did not notice days ago when it was sent:

US Citizenship and Immigration Services (“USCIS”), for the first time, has begun pooling data from DHS, the Social Security Administration, the IRS and state voter rolls, to generate a list of US citizens in its “Systematic Alien Verification for Entitlements (SAVE)” database.

They have begun doing this without notifying the American public of this change in practice, and without offering an opportunity before they began for people to comment, violating the National Privacy Act of 1974. That Act, responding to Watergate, intentionally siloed federal datasets, preventing different federal agencies from sharing data except in very specific cases where justification and notification of the subject of the “investigation” is required.

Without that siloing, the government can go fishing across all of government to find anything that a pre-selected person has done wrong; and doing that violates the Fourth Amendment.

What USCIS is doing now is asking for public comment on these changes that have already happened, in order to get some sort of retrospective blessing and insulate themselves from legal challenges. We don’t bless it. We urge you to write comments objecting to it.

Below is the Restore the Fourth suggested e-mail with a list of talking points; use one or more, paraphrase, or write your own comment:

• I oppose the change that DHS/USCIS has implemented to the US Citizenship and Immigration Service’s (USCIS’) Systematic Alien Verification for Entitlements (SAVE) database. Pooling data from DHS, the Social Security Administration, the Internal Revenue Service (IRS), and state voter data and other sources violates the National Data Privacy Act of 1974. The fact that DHS/USCIS is belatedly asking for comment about the changes that it has already implemented by accessing data from other federal agency databases in order to gather additional information on immigrants in violation of the National Data Privacy Act is deeply troubling because many Americans would have opposed this change had they been consulted ahead of the change, as the Act requires.
• The National Privacy Act of 1974 created silos in order to prevent different federal agencies from sharing data except in very specific cases, and in those cases justification and notification of the subject of the “investigation” is required. Enacted in the aftermath of Watergate, the National Privacy Act was designed to protect Americans from investigations where the government is fishing for evidence that someone has committed a crime with no predicate based on probable cause that they have done anything criminal. Access by any agency to another agency’s data without probable cause to see specific data on a suspect is illegal in order to protect all of us, regardless of our political party or our immigration status. Every resident of the U.S. is entitled to the protections enshrined by the Fourth Amendment of our Constitution.
• The legal justification provided by DHS in its SORN for its merger of federal databases is a 1999 opinion in which the Department of Justice limited the kinds of restrictions agencies could put on sharing data with law enforcement. It provides for the lawful disclosure of citizenship- or immigration-related information, but it does not grant the Social Security Administration the authority to disclose information without adhering to the requirements of the Privacy Act. 
• The repurposing of data from different agencies is also dangerous because different people’s records may be incorrectly linked together because of a name misspelling or even a failure to update a name change.
• DHS/ICIS has implemented additional changes to normal practices as part of its consolidation. Until recently there was no way to deactivate a person’s Social Security number and prevent them from receiving benefits unless there was documentation of their death. Under SAVE, DHS now uses a special indicator code to flag what it considers questionable data or special circumstances concerning an application for an SSN. This allows DHS, without any form of review, to terminate someone’s Social Security benefit. In one case earlier this year when the Social Security Administration under DOGE accidentally declared an 82-year-old man dead (see https://www.livenowfox.com/news/seattle-man-social-security-error), he lost his Social Security benefits, Medicare coverage, and even access to his bank fund. Since in the system being implemented by DHS there will be challenges in matching up names across various databases, the risk of accidental terminations of benefits is heightened.
• In 2023, a lawyer from the Social Security Administration wrote to the Fair Elections Center that “while SSA records provide an indication of citizenship, they do not provide definitive information on U.S. citizenship,” so it is very concerning that SSA data can now be used to eliminate Americans from voter rolls without further verification.
• Until now, undocumented Immigrants who lawfully paid federal taxes on their earnings using an Individual taxpayer identification number (ITIN) were promised that their personal information would remain confidential. DHS access to the IRS database completely undermines this protection, making it much less likely that they will file. This reduces government revenue and will result in increased taxes for the rest of us.
• We are seeing more frequent and broader hacking operations affecting federal agencies by foreign states and other actors (see https://www.justice.gov/opa/pr/justice-department-charges-12-chinese-contract-hackers-and-law-enforcement-officers-global and https://www.reuters.com/technology/cybersecurity/us-treasurys-workstations-hacked-cyberattack-by-china-afp-reports-2024-12-30/ and https://oversight.house.gov/wp-content/uploads/2016/09/The-OPM-Data-Breach-How-the-Government-Jeopardized-Our-National-Security-for-More-than-a-Generation.pdf). By combining databases as DHS/USCIS is doing, hundreds of millions of Americans’ data may be compromised by hackers.
• For all of these reasons, I ask DHS/USCIS to terminate the changes to the SAVE program.