The concept of privacy is often invoked for inegalitarian purposes. For over two hundred years, a husband’s privacy and that of his household prevailed over a battered wife’s interests: wife beaters were immunized from prosecution because courts refused to look into the “home closet.” Today, immigrants increasingly fall prey to privacy intrusions. As Raquel Aldana, Anil Kalhan, and Michael Wishnie brought alive at the AALS panel on Defamation and Privacy, immigrants and noncitizens have few privacy protections in our post-9/11 environment. Raquel Aldana highlighted the various ways that privacy policies negatively impact immigrants. Private landlords, hospitals, employers, and welfare offices can demand information on an individual’s immigration and citizenship status, which can produce harassment and discrimination. The Department of Justice plans to add DNA from tens of thousands of immigrants to its CODIS database, which would remain on file permanently for immigration violators (whereas genetic profiles from arrestees could be removed from the CODIS database if they are not convicted). According to Blurring The Lines: A Profile of State and Local Policy Enforcement of Immigration Law Using the National Crime Information Center Database, 2002-2004, the FBI’s criminal history database known as NCIC now includes civil enforcement immigration records, ending a decades-long policy that NCIC only included criminal data. Because NCIC is filled with inaccurate civil immigration information, over 40% of NCIC immigration hits were false positives, leading to unecessary arrests and harassment especially of Latin American nationals.
According to the panel, such privacy policies reflect “immigration exceptionalism”–citizens care little about the privacy of authorized or unauthorized immigrants and noncitizens because such treatment has no application to them. According to Michael Wishnie, the erosion of immigrants’ privacy is arguably illegal. For instance, the entry of civil immigration data into NCIC is not authorized by the NCIC statute, Section 534 of Title 28. Such diminished privacy protections also may not be in society’s best interests. Anil Kalhan made a compelling argument that requiring the disclosure of immigration and citizenship status exacts societal costs as well as individual costs. Individuals are more vulnerable to racial profiling, discrimination, and harassment while their targeted community suffers feelings of fear and shame, leading to a chilling of pro-social behaviors such as the reporting of crime. Kalhan’s The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement published by the U.C. Davis Law Review can be found here.