This summer, Immigration and Customs Enforcement (ICE) agents arrested George Retes, a U.S. citizen and an Army veteran, during an immigration sweep as he was driving to work. Although Retes repeatedly told the officers he was an American and showed them proof, ICE detained him for days, strip-searched him and forced him to provide a DNA sample — all without charges. (Weeks after Retes’ story became public, the Department of Homeland Security said that he “became violent and refused to comply with law enforcement,” challenging agents and blocking their route “by refusing to move his vehicle out of the road.”) Retes has teamed up with our organization, the Institute for Justice, and brought claims for damages alleging violations of his constitutional rights. But that is not the end of the story.
Now, as ICE ramps up this type of data collection, Retes and countless other Americans are at risk.
In addition to our DNA, the Department of Homeland Security (DHS) has recently and quietly authorized ICE officers to forcibly collect and retain intimate identifiers: our fingerprints and digital images of our faces. Combined with other technologies, the department is creating a general warrant for our persons, the kind of abuse that ignited the American Revolution.
The department is creating a general warrant for our persons, the kind of abuse that ignited the American Revolution.
A DHS document, meant to ensure our privacy, lays out the facts. An app called Mobile Fortify allows ICE and Customs and Border Protection (CBP) officers to photograph and scan anyone they “encounter” in the field, regardless of citizenship or immigration status. If there isn’t a photo match, officers can collect people’s fingerprints, which are then checked against DHS biometric records. Once DHS has that sensitive data, the app feeds it into CBP’s Automated Targeting System — an enormous watch list that merges border records, passport photos and prior “encounter” images. CBP retains every nonmatch photograph for 15 years, meaning that even if you’re an American citizen mistakenly stopped on the street, the government has your biometric records for a generation.
Mobile Fortify is just the latest cog in a much larger machine. When ICE agents arrest someone like Retes — citizen or not — they routinely swab their mouth to collect their DNA. Like faces and fingerprints, the government uploads those DNA records into the FBI’s Combined DNA Index System (CODIS), where they sit indefinitely. So, if ICE mistakenly arrests a U.S. citizen like Retes, his genetic information can remain in federal hands forever.
None of this should be happening.
In constitutional terms, DHS and ICE have created what the founders decried as a “general warrant”: a roving license for agents to search anyone, anywhere, at any time. The American Revolution was, in many ways, a rebellion against that kind of arbitrary power. Before the Revolution, British authorities used “writs of assistance” — open-ended warrants that allowed customs officers to enter whatever homes, shops or ships they wished to hunt for untaxed goods, without particular targets. In 1761, Boston lawyer James Otis denounced these writs, arguing that they placed “the liberty of every man in the hands of every petty officer.” That outrage eventually led to the Fourth Amendment, which guarantees that “no Warrants shall issue, but upon probable cause,” and that those warrants must be specific — not general.
So how did we get here? Our drift from the founders’ vision comes from a century’s worth of constitutional rot.
First, the Supreme Court narrowly interpreted what the Fourth Amendment protects. Starting in the Prohibition Era, the court began reading the amendment narrowly, allowing federal agents to trespass on private property and to wiretap suspected bootleggers without a warrant. Then, starting in 1967, the Supreme Court began asking whether a search violated some malleable “reasonable expectation of privacy,” rather than simply if the government was purposely collecting information about Americans. And that “reasonable expectation of privacy” test? It didn’t come from the Constitution at all — it came from an 1890 tort essay by Samuel Warren and Louis Brandeis about gossip and tabloid photographers. It had nothing to do with restraining federal agents.
Those blind spots inform the regulations allowing mass surveillance. And when challenged, courts routinely defer to agencies that claim necessity while quietly expanding their power to surveil everyone.
American surveillance has been normalized under the “reasonable expectation of privacy” test. After all, the word “privacy” implies that anything you voluntarily expose to the public (like your face) gets no constitutional protection. And because the test tracks social norms, the government can expand surveillance and then point to that new normal to claim that the public’s “expectations of privacy” have “diminished.” Its logic is circular: more cameras, databases and data-sharing yield lower judicial protection. The result: Mass surveillance becomes its own constitutional permission slip.
The government is assembling vast databases of facial scans, fingerprints and DNA that sweep in millions of American citizens who, by definition, cannot violate immigration law.
Second, the courts treat warrantless biometric collection based on how intrusive it feels or how useful it seems to the government. In Maryland v. King, the court upheld warrantless DNA swabs from people arrested for serious charges as it serves a legitimate public interest and is “minimally intrusive.” But a painless search is still a search — and a cheek swab reveals family ties and genetic traits, then lives in government databases indefinitely. The King decision tolerated swabs only when officer discretion was tightly confined. ICE’s sweeps are the opposite: “Encounter” means anyone an agent chooses to stop — no reasonable suspicion, no warrant, little oversight. Mobile Fortify digitizes the very general warrant abuses the founders forbade.
Justice Antonin Scalia dissented in King, warning of a “genetic panopticon” that would be turned against the innocent. He was right. To defend this new biometric surveillance regime, CBP says that this dragnet is about identifying criminals that enter our country. But that is not what the system actually does. Under the banner of immigration enforcement, the government is assembling vast databases of facial scans, fingerprints and DNA that sweep in millions of American citizens who, by definition, cannot violate immigration law. They are now folded into immense repositories built for a mission they have nothing to do with.
With the nation’s 250th anniversary approaching, we should honor the limits that made us free. Congress should halt warrantless biometric collection and require prompt destruction of citizens’ records. Courts should restore the Fourth Amendment’s original guarantee: Searches must be particular and justified — not open-ended, not perpetual. George Retes’ case shows what happens when we forget.
