Margaret Hu (Washington and Lee University - School of Law) has posted Crimmigration-Counterterrorism (Forthcoming University of Wisconsin Law Review) on SSRN. Here is the abstract:
The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigration-counterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to better understand modern crimmigration-counterterrorism rationales and technologies. Like the implementation of the Chinese Exclusion Act, extreme vetting, or enhanced vetting, relies upon biometric data as an anchor point for identity databasing and security screening. Thus, emerging vetting systems provide a timely example of the conflation of crime, immigration, and counterterrorism policy. It concludes that Critical Theory and theories of discrimination that stem from litigation surrounding crimmigration-counterterrorism policies may suggest legal avenues to guard against the risk of cyber-registries and algorithmic screening systems dependent upon biometric databases that may promote discriminatory vetting.