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How Does Information Sharing Between DHS and Other Non-Enforcement Executive Agencies Work?

Tuesday, April 17, 2018

The Commerce Department’s recent announcement that the 2020 census will include a citizenship question has generated significant debate surrounding the possibility of this information getting into the hands of federal enforcement agencies, such as the Department of Homeland Security, for the purpose of targeting undocumented immigrants. Some undocumented immigrants have expressed fears that participating in the census might lead to their deportation. However, federal law and interagency agreements set strict rules for what data the Census Bureau and other federal non-enforcement agencies1 can share with DHS. These constraints, designed to protect individuals’ privacy, seem to prevent DHS from using census responses to carry out immigration enforcement actions.

DHS uses Information Sharing and Access Agreements (ISSAs) to gain access to other executive agencies’ information. While DHS calls these ISSAs by different names, such as memorandums of understanding or memorandums of agreement, these agreements set the guidelines and procedures for information-sharing between DHS and other executive agencies. As Figure 1 shows, each ISSA has clearly set guidelines directing what information DHS can access from other executive agencies, under what circumstances they can obtain it, and what they can do with it. Each ISSA focuses on a specific topic relating to information-sharing, such as cybersecurity or e-commerce, making it impossible for DHS to access all the information collected by another agency for its own purposes. In short, ISSAs ensure that DHS only accesses and uses information from other agencies that it is permitted to, protecting the privacy of citizens and non-citizens alike.

Figure 1: Examples of ISSAs Between DHS and Other Non-Enforcement Government Agencies

Name of Agreement

Information Shared

Who Can Access the Information

Purpose of the Agreement

Memorandum of Understanding Between the Department of Health and Human Services (HHS) and the Department of Homeland Security

  • Customs declarations
  • Information collected through the Advance Passenger Information System
  • Passenger name record data
  • U.S. Coast Guard maritime contacts
  • Public health information
  • Appropriate infection control practices
  • Safety measures to protect DHS employees and contractors
  • Additional data used to identify people coming into the U.S. who might be infected with a serious disease

DHS Agencies:

  • Immigration and Customs Enforcement
  • Customs and Border Protection
  • U.S. Coast Guard

HHS Agencies:

  • Center for Disease Control and Prevention

Increase cooperation between HHS and DHS regarding the nation’s response to the possible introduction, transmission, and spread of serious and quarantinable diseases from foreign countries into the U.S.

Memorandum of Understanding Between Department of Labor (DOL) and the Department of Homeland Security

  • I-9 forms
  • Information relating to identification of overlapping enforcement activity
  • DOL information regarding other groups that might frustrate the enforcement of labor laws
  • Information supporting DOL’s request for parole of a witness
  • Information relating to abusive employment practices by employers

DHS Agencies:

  • Immigration and Customs Enforcement

DOL Agencies:

  • Wage and Hour Division
  • Office of Federal Contract Compliance Programs
  • Occupational Safety and Health Administration
  • Office of Labor-Management Standards
  • Office of the Assistant Secretary for Policy

Establish the ways that DOL and DHS will work together to ensure that their respective workplace activities do not conflict and are mutually beneficial.

International E-Commerce Supply Chain Memorandum of Agreement Between Department of Commerce and Department of Homeland Security

 
  • Statistical trade data
  • Information received or collected from U.S. trading partners and trade organizations where the U.S. is a member

DHS Agencies:

  • Office of Strategy, Policy, and Plans
  • Customs and Border Protection
  • Immigration and Customs Enforcement

DOC Agencies:

  • Office of Supply Chain, Professional and Business Services
  • Supply Chain Team

Combine DHS and DOC resources to address the challenges of a changing global digital marketplace, support U.S. businesses, promote compliance with U.S. customs and trade laws, and improve the national economy.

Sources: ACLU, Department of Labor, Department of Commerce

In addition to the ISSAs, U.S. law establishes very clear and strict rules for information sharing between non-enforcement agencies such as the Census Bureau and DHS. Under 13 U.S.C. Section 9, information collected through the census, which will now include citizenship status, may only be used for the purpose of gathering statistics on the entire population in the United States, citizens or not. The statute also states that information collected through the census cannot be used against an individual by a government agency, such as DHS. This provision is extremely important since it protects an individual’s answer to the upcoming citizenship question from being attained by DHS for enforcement purposes.

As we have written previously, U.S. law also limits what data the Internal Revenue Service (IRS) shares, including Individual Taxpayer Identification Numbers (ITIN) that many undocumented immigrants use to file their federal income taxes. By law, DHS and other federal agencies can access information from individual’s tax returns, but only under specific conditions. These conditions mandate that the tax returns released by the IRS only involve individuals who have not paid their taxes or are under investigation for possible crimes related to faulty tax returns. Because of this policy, DHS does not have the unilateral ability to access any IRS information solely to assist in identifying and locating undocumented immigrants for possible deportation.

An accurate count of the American population is incredibly important for many reasons, as discussed in our recent podcast. A major concern about the addition of a citizenship question to the 2020 census is that by discouraging immigrants, both legal and undocumented, from responding, it will lead to an undercount of this significant population. Keeping in mind the strict limitations on how census data can be used, immigrants should feel secure in participating in the census and immigration advocates should work to encourage participation.

  1. For the purposes of this article, we define non-enforcement agencies as federal agencies that do not have a mandate to primarily carrying out criminal and national security laws and regulations. Enforcement agencies that fall outside of this category include The Department of Defense, the Department of Justice, and the National Security Administration.

KEYWORDS: DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION, U.S. CENSUS BUREAU