Attorneys worry over increased secrecy for Customs and Border Protection officers

Human rights activists and immigration lawyers are concerned over a new policy allowing Customs and Border Protection to withhold certain agency-related information from the public.

The Nation first reported on Tuesday that CBP was granted a “security agency” designation Jan. 31.

The new policy grants CBP an additional layer of secrecy by keeping the names of all its officers and other kinds of records from public disclosure under the Freedom of Information Act, also known as FOIA.

Highly secretive intelligence and law enforcement agencies such as the FBI and Secret Service normally rely on the “security agency” designation to keep information private.

Esha Bhandari, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said CBP’s actions are “definitely a move in the wrong direction” especially at a time in which the Trump administration has poured more money and resources toward immigration enforcement agencies such as CBP and Immigration and Customs Enforcement.

“FOIA is designed to get access to information about the inner workings of government,” Bhandari told. “I think it is just troubling when an agency that holds increasingly more power over people’s lives seeks more secrecy.”

Bhandari also added that the latest move could make it more difficult to hold CBP accountable. Danielle Rizzo of the American Immigration Lawyers Association agreed.

“Transparency goes hand in hand with accountability,” Rizzo said, adding that the new rule “does leave a potential for gaps of information.”

Rizzo explained that lawyers often get immigration enforcement information through agency memos and other kinds of communications that might offer officers unofficial guidance on how certain regulations and policies are being interpreted internally at immigration agencies.

The new policy will likely make it harder to pinpoint “where that guidance is coming from” if officers’ names are to be redacted from certain FOIA requests, she said.

A CBP spokesperson said in a statement that the agency’s leadership advocated for the designation in order to avoid disclosure policies from the Office of Personnel Management, which regulate how information concerning federal civilian employees is released to the public.

CBP’s “security agency” designation came as a way of “protecting CBP employees’ information” after the agency and the Department of Homeland Security “became aware of a Twitter account posting employee information” commonly found through OPM releases of salary information for federal employees, an agency spokesperson said.

The Twitter account is currently suspended from the social media platform.

Even though the information posted on Twitter was considered public information under OPM and is available through several federal employee salary databases, CBP leadership advocated for the “security agency” designation out “of concern for the safety of our workforce.”

Rizzo said that while employee privacy concerns are often considered to be a valid reason, the policy “may go too far, making it hard to maintain transparency.”

Before the policy change, “only CBP’s frontline law enforcement, investigative or intelligence positions held this designation,” but it now applies to “the entirety of CBP’s workforce,” the spokesperson said.

High profile human rights groups such as Amnesty International and the American Civil Liberties Union have been questioning CBP’s secretive practices after it was reported that the agency compiled a list of 59 mostly American reporters, attorneys and activists from groups such as Al Otro Lado, which provides free legal representation to immigrants, who would be stopped for questioning by border agents when crossing the U.S.-Mexican border at San Diego-area checkpoints.

Officials also placed alerts on the passports of some of the people on the list.

Mitra Ebadolahi, senior staff attorney with the ACLU’s Border Litigation Project in San Diego, called out CBP last year for using “the pretext of ‘border’ security to trample on Americans’ constitutional rights” and demanded “meaningful agency oversight and accountability.”