As ICE arrests mount at airports, privacy expert asks: Can SFO rein in the feds?

In the wake of several violent and high-profile federal arrests of immigrants in domestic terminals at SFO and other airports, an airline data privacy expert at Identity Project, a humans rights organization, says the San Francisco’s Airport Commission could be doing more to protect immigrants who are traveling through SFO.

Edward Hasbrouck , who has been working on privacy issues related to airline reservation data for 29 years, said that, at the very least, airports could post warnings to immigrants letting them know their passenger data will be shared with TSA and ICE. That sharing puts any immigrant with a pending status at risk of arrest. 

The recent arrest of a 38-year-old woman from Ukraine who did not have a deportation order is one local example of how TSA data sharing is leading to arrests of immigrants. Arrests such as this which occur in domestic terminals and without a deportation order are unprecedented.  Iryna Gorb, whom Mission Local reported was arrested on July 22, had an expired visa. She did not have a deportation order according to her attorney, Raisa Stepanova.

Gorb is just one of an unknown number of immigrants across the country who have been arrested as a result of TSA sharing data with ICE.  At least 11 Bay Area residents have been arrested in the past three weeks, the San Francisco Chronicle reported.

Hasbrouck also wondered whether the airport could prevent federal agents from entering without a warrant in areas not under clear federal authority.

The airport did not say whether it has assessed its contracts with federal agencies to see if it could restrict warrant-less activity in certain areas. 

It failed to respond to detailed questions from Mission Local, instead stating that federal agencies operate outside of airport jurisdiction. 

Hasbrouck, as well as immigration attorneys, also questioned the TSA’s legal authority to share passenger flight information with ICE. That practice has prompted multiple arrests in recent months and triggered warnings that immigrants with temporary status should  “exercise extreme caution and/or avoid air travel,” and bring documentation of lawful status with them if they decide to travel.  

For decades, domestic travel in the United States was largely sheltered from immigration enforcement.

But now, as a result of data sharing between the Transportation Security Administration (TSA) and Immigration and Customs Enforcement (ICE), many more immigrants across the country, some without orders of deportation, are being arrested by federal agents, according to public records, immigration attorneys and news reports of arrests from across the country. Often the agents are not in uniform. 

A formal agreement between ICE and TSA, which was released in a records request to the government transparency nonprofit American Oversight on July 23, reveals that “ICE will share information with TSA to identify individuals of interest to ICE in furtherance of its law enforcement mission.” Details about what exact data is being shared are redacted. What is known is that airlines share passenger information with TSA, and then TSA shares information with ICE, which may prompt an arrest. 

Hasbrouck said restrictions could be placed.

“The city does not have to allow ICE to roam the airport freely, without warrants, outside customs and immigration areas. The city could restrict ICE agents to those areas unless they have warrants,” said Hasbrouck.

“This is unconstitutional and should be stopped,” said Hasbrouck.

Airport officials, however, say federal agencies operate outside their jurisdiction. SFO, although it is in San Mateo County, is run by the City and County of San Francisco, which is a sanctuary city — meaning the city’s local law enforcement agencies are precluded from assisting federal agencies in immigration enforcement. 

The airport, however, is bound by federal regulations, according to San Francisco Airport Duty Manager Chris Morgan.

“ICE and DHS are federal agencies that operate outside the jurisdiction of U.S. airports,” said Francis Tsang, a communications advisor to SFO. 

San Francisco Sen. Scott Wiener said he is concerned about the data sharing and the arrests. He said the city and the airport need to “make this as hard as possible for ICE within the bounds of the law.”

ICE and TSA, said Wiener, are “turning airports into a dragnet.” 

Lily Fhasi-Haskell, the managing director at the Arab Resource and Organizing Center, a nonprofit that provides immigration legal aid and support to immigrants, said it is incumbent upon the city leaders to “look into how to extend protection to communities and stand up in face of a repressive government.

Data sharing among the airlines, TSA, and ICE

Hasbrouck also says data-sharing policies between airlines — who share passenger information with TSA and Customs and Border Protection — as well as data sharing between TSA and  Customs and Border Protection with ICE, may be illegal. He says many of these policies “have not yet been reviewed or approved by any court, and have little or no basis in any specific law.”

Nonetheless, these practices have yet to be challenged in court. 

The mission of the Transportation Security Administration, or TSA, is to ensure the safety of airline passengers. Saira Hussain, an attorney at the Electronic Frontier Foundation  said there could be a legal argument that calls into question whether TSA sharing data with ICE and collaborating with ICE on immigration enforcement is out of its scope.

“The longheld belief is that TSA focuses on domestic security; immigration enforcement is not part of domestic security,” said Hussain.

Hussain said, given past litigation that found inconsistencies and errors in immigration datasets, she is “very concerned also about mistakes in the data leading to a wrongful arrest.”

She called on airlines that are sharing passenger reservation data to challenge these data-sharing demands in court.