Federal Government Watchdog Warns the DHS Surveils Americans Without a Warrant Using More Than 20 Technologies

Written by Derrick Broze

A federal watchdog has released a report detailing how federal law enforcement agencies are using more than 20 types of surveillance technologies without a warrant and with limited privacy protections.

Three federal law enforcement agencies under the Department of Homeland Security (DHS) could be doing more to ensure Americans' privacy is protected from the federal government's use of numerous surveillance technologies. Current efforts by the DHS are falling short of protecting Americans from biased technology and violations of civil liberties, according to a recently released report by the U.S. Government Accountability Office (GAO).

The report examined technologies which the agencies own and/or have agreements to search or view databases operated by third parties. In fiscal year 2023, the DHS used more than 20 types of detection, observation, and monitoring technologies, such as drones, facial recognition, and automatic license plate readers. Each of these technologies currently operate without the need for a warrant approved by a judge.

The authors of the report make 5 specific recommendations for the DHS, such as encouraging the agency to develop policies and procedures to assess and address bias risks for the surveillance technologies.

The GAO report, titled DHS Could Better Address Bias Risk and Enhance Privacy Protections for Technologies Used in Public, focused on the Customs and Border Patrol (CBP), Immigration and Customs Enforcement (ICE), and the Secret Service. The GAO said they focused on these agencies because of the "the large number of law enforcement officers" within them.

The GAO was created to be an independent, nonpartisan government agency within the legislative branch of the U.S. federal government which provides auditing, evaluative, and investigative services for the US Congress.

The GAO took up this investigation due to federal law enforcement agencies increasing use of technologies like automated license plate readers and drones. The authors acknowledge that "the use of these technologies in public spaces—where a warrant is not necessarily required prior to use—has led to concerns about how law enforcement is protecting civil rights, civil liberties, and privacy."

The GAO inquiry focused on three main areas -- the use of the technologies in public spaces without a warrant; the extent to which the agencies' policies assess the use bias and privacy violations by the technologies; and whether or not DHS federal law enforcement agencies protect privacy by having policies and procedures in place that limit the collection and use of information from these technologies.

The specific technologies examined include facial recognition, fixed and mobile automatic license plate readers, audio recording devices in light poles and other infrastructure, concealed and visible body cameras, cell site simulators also known as Stingrays, drones, radio frequency collection, surveillance towers, and traffic cameras.

The GAO also noted that the three agencies use a "variety of analytic software systems", some of which use artificial intelligence (AI) to enhance their surveillance capabilities in public spaces. These analytic systems have multiple uses including anomaly detection, facial recognition, object recognition, and object tracking.

While the GAO report concedes that the use of these technologies without warrants can "raise civil rights, civil liberties, and privacy concern", it also notes that "DHS officials stated that facial recognition is not used to scan members of the general public."

However, the report admits that the agencies' policies do not always address key privacy protections, such as ensuring only relevant personal information is collected. Further, although the DHS is required to develop policies and procedures to address bias risk from technologies using AI -- and reportedly has plans to do so -- there are no such policies required for all other technologies at their disposal.

"We and others have reported that the introduction of AI can enhance the capabilities of technology but can also increase the risk of bias," the GAO report states. "For example, a 2024 National Academies report found that while progress has been made in the accuracy of facial recognition algorithms, they still perform less well for groups with certain characteristics, including those associated with race, ethnicity, or gender."

Beyond risks of bias and limits on personal data collection, the report warns that the use of these technologies poses a danger of deterring constitutionally protected behavior by Americans.

The GAO discusses the International Association of Chiefs of Police identification of the "enhanced collection and compilation of automated license plate reader data" as increasing the "risk that individuals will become more cautious in the exercise of their protected rights because they consider themselves under constant surveillance". The authors note that civil liberties advocates have long noted the use of facial recognition at protests and other public events could cause some people to stop participating in these events in the future.

The Electronic Privacy Information Center (EPIC), a non-profit focused on privacy, freedom of expression, and democratic values in the information age, stated that they support efforts to "increase public privacy and roll back the use of advanced surveillance technologies on the public." EPIC has a 30-year history of fighting for privacy rights and pushing back against government intrusion on digital rights.

Will GAO Recommendations Make a Difference in Policy?

The GAO's five recommendations focus on various apparent gaps in the DHS policy infrastructure. The agency calls on the DHS's Office for Civil Rights and Civil Liberties (CRCL) to develop policies to "assess and address bias risk" relating to the DHS law enforcement agencies' use of surveillance technology prior to their use. The GAO also calls for the CRCL to develop policies to assess bias risk for technologies currently in use. Currently, the DHS agencies can seek counsel from the CRCL but they are not required to do so.

"By developing policies and procedures to assess and address the risk of bias posed by DHS law enforcement agencies' use of detection, observation, and monitoring technologies, CRCL could help ensure these technologies are not infringing on civil rights and civil liberties by introducing bias," the report states.

The GAO recommends the Commissioner of CBP, the Director of ICE, and the Direct of the Secret Service to require each technology policy to address the privacy protections in the Fair Information Practice Principles. The Fair Information Practice Principles are a set of principles aimed at addressing "common sense privacy protections". The Code of Fair Information Practices was produced by the Health, Education, Welfare Advisory Committee on Automated Data Systems in July 1973.

The GAO report also notes that while the DHS currently conducts privacy impact assessments to educate the public on how the agency will protect Americans' privacy, it does not instruct federal employees on how to implement privacy protections which have been identified.

In the weeks since the release of the GAO report on public surveillance by the DHS the story has not trended on twitter, or become the topic of the podcast circuit. The public continues to be dangerously unaware of the numerous ways in which their privacy is under attack on a daily basis.

While the GAO's report should be welcomed and used as a tool to educate the American public, we should not put our faith in politicians to read the report and implement the changes in an effort to protect individual privacy. Especially not when Big Tech in the form of Elon Musk, Peter Thiel, David Sacks, and other technocrats have a direct line with President-elect Donald Trump.

Unfortunately, we cannot count on the warnings of the GAO to become policy.

In September 2023, the GAO released a report detailing how law enforcement agencies in the Department of Justice and the DHS were in the process of developing policies on civil liberties. The GAO made 10 recommendations to the DHS and DOJ on ways the agencies could establish and implement a process to monitor staff training requirements.

As of December 2024, the GAO says the DHS and the DOJ agencies have only taken steps to implement four of the ten recommendations.