By Rhyma Asim
Concerns over privacy rights have continuously grown as technology becomes smarter and more prevalent in the daily lives of citizens. While body camera footage has been widely utilized by law enforcement, the use of new technology tools by ICE raises constitutional fears over the future of the Fourth Amendment’s right to privacy in the digital age.[1]
In Carpenter v. United States, the Supreme Court found that cell-site location tracking (CSLI) was subject to the double-pronged test assessing whether a privacy right has been implicated.[2] For such a right to be found, there must be (1) a subjective expectation of privacy, (2) that society views as reasonable.[3] The Carpenter Court ultimately found that CSLI was an unconstitutional invasion into privacy and, therefore, an unreasonable search.[4] This holding, along with precedent, has demonstrated the Court’s intention of protecting the privacy of citizens who are “at the mercy of advancing technology.”[5] The Court struggles to balance modern advancements with the “degree of privacy against government that existed when the Fourth Amendment was adopted.”[6] The growing concern of “absolute surveillance” has become a point of contention among lower courts, allowing ICE to take advantage of judicial blind spots.[7]
While widespread concern over ICE’s use of facial recognition has long been criticized, the recent development of specialized surveillance systems have expanded their power, allowing ICE to hack into cellphones and retrieve sensitive data.[8] These tools have the ability to monitor social media, read messages, and track locations.[9] Facial recognition software has even been used against protestors in Minnesota, with ICE agents adding these activists to an unknown “database.”[10] The federal government argues that the use of such technology aims to identify individuals who may be threats to national security.[11] However, the method of identifying individuals–who simply protest ICE’s tactics or come into contact with agents–is an unreasonable search and seizure in violation of the Fourth Amendment’s right to privacy.[12] This intrusive technology also allows ICE agents to racially profile individuals, posing great harm to “immigrant communities and communities of color.”[13] A much more tame surveillance method was at issue in Carpenter, with the Court fiercely holding that accessing CSLI to track an individual without a proper warrant infringed on the constitutional right to privacy.[14] ICE’s surveillance mechanisms, however, expand even broader than simple location tracking.[15] For instance, the Department of Homeland Security has collected approximately 24 artificial intelligence-based tools to gather sensitive information but has continued to request even more data from advertising technology.[16]
Such an intrusion implicates far more dangerous privacy concerns than simply the concern over CSLI revealing “a comprehensive chronicle of [a] user’s past movements.”[17] Rather, intruding on personalized data within an individual’s cell phone reveals “an intimate window” into their life, which proved to be a key factor in Carpenter’s ultimate holding.[18] While the Carpenter Court found that an individual does not “surrender all Fourth Amendment protection” by being in public, ICE has plowed through this rule by aggressively investigating and collecting data on anyone without limitation.[19] Without first obtaining a warrant to access this information, ICE is infringing on the Fourth Amendment’s protection against unreasonable searches and seizures.[20] Without proper judicial oversight, ICE’s surveillance “will enable draconian policing and abuse,” posing immense danger for the future of our democratic society.[21] As ICE continues to seek more intrusive technology, individuals are further stripped of fundamental protections provided by the Constitution.
Rhyma Asim is a second-year law student from Houston, Texas. She graduated from the George Washington University in 2022 with a degree in International Affairs and a minor in Law and Society. She will spend the summer with Simpson Thacher in Houston.
[1] See U.S. Const. amend. IV.
[2] See Carpenter v. United States, 585 U.S. 296 (2018).
[3] See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
[4] See Carpenter, 585 U.S. at 320.
[5] Kyllo v. United States, 533 U.S. 27, 35 (2001).
[6] Id. at 34.
[7] See Carpenter, 585 U.S. at 312.
[8] See Sheera Frenkel and Aaron Krolik, How ICE Already Knows Who Minneapolis Protesters Are, N.Y. Times (Jan. 30, 2026), https://www.nytimes.com/2026/01/30/technology/tech-ice-facial-recognition-palantir.html.
[9] See id.
[10] Id.
[11] Margi Murphy, Minnesota Woman Says Her Global Entry Nixed After Agent Run-In, Bloomberg Tech. (Jan. 30, 2026), https://www.bloomberg.com/news/articles/2026-01-30/minnesota-woman-says-her-global-entry-nixed-after-agent-run-in.
[12] See id.
[13] Joseph Cox, Inside ICE’s Tool to Monitor Phones in Entire Neighborhoods, 404 Media (Jan. 8, 2026), https://www.404media.co/inside-ices-tool-to-monitor-phones-in-entire-neighborhoods/.
[14] See Carpenter v. United States, 585 U.S. 320 (2018).
[15] See Murphy, supra note 11.
[16] See id.; see also Frenkel and Krolik, supra note 8.
[17] Carpenter, 585 U.S. at 300.
[18] Id. at 311.
[19] Id. at 310; see Cox, supra note 13.
[20] See U.S. Const. amend. IV.
[21] See Cox, supra note 13 (quoting Jake Laperruque, the Deputy Director of the Center for Democracy & Technology’s Security and Surveillance Project).