Updated: October 18, 2017
In August, Senator John Cornyn (R-TX) and six Republican co-sponsors introduced the Building America’s Trust Act (S.1757), an immigration enforcement and border security bill with a $15 billion price tag that covers a vast array of immigration and national security-related issues – and that would be implemented effectively in secret. OpenTheGovernment, along with our partners at Cause of Action Institute, the Project on Government Oversight, and CREW, wrote to Senator Cornyn’s office asking that he remove two provisions from the bill that are fundamentally at odds with open and accountable government.
The bill contains an unprecedented expansion of surveillance at the border, including collection of biometric information such as facial scans and increased use of drones. It would also authorize “border infrastructure” (which could include expanding the border wall), target immigrants who overstay their visas for deportation, and impose penalties on sanctuary cities. All of this would be done almost entirely out of the public eye, with virtually no opportunity for public feedback or access to information about implementation, and thus little opportunity for accountability for potential violations of privacy rights, misuse of taxpayer funds, or other abuses.
That’s because the bill contains a provision that would exempt the implementation of the entire bill from the Administrative Procedure Act (APA) – which includes the Freedom of Information Act (FOIA) and the Privacy Act – and the Paperwork Reduction Act (PRA), some of the most essential tools for access to information and public engagement with government.
The APA governs federal rulemaking, and was intended to keep the public informed about the federal regulations that impact their lives, as well as provide crucial oversight mechanisms. Importantly, the APA also encompasses the FOIA and the Privacy Act, meaning that this bill could exempt major government activities related to border security and immigration enforcement from statutory requirements to release information to the public and uphold privacy protections. Section 702 claims an exemption from the APA is necessary for “the expeditious implementation of this Act,” but the APA already contains a good cause exemption from notice and comment procedures that would cover any legitimately necessary exemptions the agencies would need to make. Creating a new exemption would effectively allow the DHS Secretary, Secretary of State, and Attorney General to hide any new rule from public notice, without regard for the rule’s importance to the public.
The PRA established requirements for government information collections, including similar public notice and comment requirements and oversight mechanisms. For example, when federal officials wish to collect information from individuals at border crossings, such as biometric data or social media information, they must first have a list of questions approved by the Office of Management and Budget, and are required to give the public the opportunity to offer comments and suggestions. If the bill is exempt from the PRA, the public would have no way of giving feedback, and would likely not know about the information collection at all until it went into effect.
Even the bill itself has been shrouded in secrecy, as the bill text remains unavailable to the public over a month after it was introduced. Instead, we have been forced to rely on an unofficial copy obtained by Ars Technica.
The letter from OTG and partners notes that it is particularly troubling that Senator Cornyn, who was a leader in passing significant FOIA reforms just last year, would sponsor a bill that would seriously undermine transparency and hide significant government programs from public accountability. A bill of this size and scope would have enormous implications for human rights, privacy protections, civil liberties, and economic and security matters. Expanding the border wall, increasing immigration enforcement, and expanding surveillance capabilities all have serious potential for abuse, and it’s crucial that the public be able to access information about their implementation.
Read the full letter here.
Update: The Border Security in America Act (H.R.3548), introduced in the house by Rep. Michael McCaul (R-TX) with 67 Republican co-sponsors, contains a similar exemption from the APA. Section 112 of H.R.3548 exempts the border patrol, infrastructure, and technology activities in the bill from the APA. An amendment offered by Rep. Martha McSally (R-AZ) carved out FOIA from the waiver, but the bill still contains an exemption from the APA, including the Privacy Act. OTG opposes both S.1757 and H.R.3548.