Beware the Sanctuary
To keep persecuted people safe, refuge has to be more than a label.
BY ALL ACCOUNTS, the 1790 census was a failure. The first to be administered in the newly independent United States, it was a massive undertaking that asked just six questions: (1) name of head of family, (2) number of free white males over sixteen, (3) number of free white males under 16, (4) number of free white females, (5) number of other free persons, and (6) number of slaves. Despite its relative simplicity for the times, the results ended up being inaccurate, incomplete, and heterogeneous. For one, communication and travel made it difficult to collect the first census responses. The marshals who were charged with administering the census were also not provided with forms to fill out, so they documented people’s answers however they could.
Unsurprisingly, people were unwilling to participate. The top brass of the U.S. government back then, including President George Washington, admitted that people would be unwilling to fill out these forms because of a general mistrust of government and “an apprehension that [the census] was intended as the foundation of a tax,” according to an article in the Denver University Law Review. In other words, citizens of the young republic already worried that state officials could misuse their information.
And they did. By the mid-19th century, as the number of questions grew, census marshals began using citizens’ information for personal gain, exposing it for lurid curiosity, and causing embarrassment. The marshals posted the information in at least two public places for people to make corrections before the forms were sent off to the government, revealing personal details to the community. These concerns made it to the Congress, where Representative James Garfield warned that “[t]he citizen is not adequately protected from the danger, or rather the apprehension, that his private affairs, the secrets of his family and his business, will be disclosed to his neighbors,” according to the article. Internal efforts to compel officials to swear they would not disclose the information collected proved futile—as long as the officials could extract some advantage or profit from people’s information, they would. In 1890, Congress finally passed a statute that criminalized the disclosure of census information, and it became the cornerstone of American privacy law.
The ubiquitous sharing of our most intimate digital information these days is mostly beyond our control.
Today, census information enjoys relatively airtight protection: Title 13 of this country’s laws establishes that “in no case shall information furnished under this section be used to the detriment of any respondent or other person to whom such information relates.” The same law also makes census information immune from legal process (it cannot be entered into evidence, for instance). But those of us who were affected by or followed the legal battle over the Trump administration’s proposal to include a citizenship question in the census know that this protection alone doesn’t communicate to a people already wary of government violence that they can feel safe. In 2019, the National Immigration Law Center published research showing that the inclusion of a citizenship question would have decreased Latinx immigrant families’ willingness to participate in the count by almost half. Even after the Supreme Court rejected that effort, confusion about whether the citizenship question would be included kept immigrant families anxious about the threat of deportation.
These days, the ubiquitous sharing of our most intimate digital information is mostly beyond our control. The Center on Privacy & Technology at Georgetown Law just released a report a month ago (to which I contributed research) on how our deportation machinery has become driven by data. The report, titled “American Dragnet” exposes how the infrastructure of immigration enforcement is set up. It relies heavily on our day-to-day digital disclosures, especially the ones we make unthinkingly when our fingers make contact with those “I accept” buttons on our phones. According to the report, “[a]fter 9/11, ICE paired [immigration] programs with much broader initiatives, tapping vast databases held by private data brokers as well as state and local bureaucracies historically uninvolved with law enforcement,” including DMV and utility records.
Yes. That means that even if you’re not an immigrant and there are no immigrants in your family, the Department of Homeland Security has access to your records. Depending on the specific records that your DMV and utility company collects, ICE could tap into your call records, child welfare records, credit headers, employment records, geolocation information, health care records, housing records and social media posts. Today, ICE can locate three out of every four adults just through utility records, and since you need to switch your water and electricity to move, very few people are exempt from this dragnet.
Because of the ongoing assault on abortion rights, white women are now discovering the extent to which their data was never theirs.
Immigrant communities have been sounding the alarm over data privacy for years, warning that if they can come for us, they can come for natural-born citizens, too. This is not just because of the geographic and subject-matter jurisdiction DHS has authority over and the data it uses to carry it out, but also because of the networks that it can tap into. The confluence of these legal tributaries resulted in the presence of immigration agents at pro-abortion protests in Los Angeles, as Vanessa Taylor of NAZAR has explained.
Because of the ongoing assault on abortion rights, white women are now discovering the extent to which their data was never theirs.
By contrast:
Don’t get me wrong. Increased awareness about this country’s diverse pathways to jail or immigration detention is always a good thing, and it’s exactly what we need to face the erosion of rights that’s soon to come. Companies profit from the products you buy from them and also from the essence of the digital self you shed. It’s like skinning your knees as a kid and wondering if a layer of skin got left behind on the pavement.
The apps are just the beginning of the story—a manifestation of how some people tend to shut their eyes to civil rights violations until it directly affects them. Data collection aside, some medical professionals have shown a particular affinity for reporting people to the police for conduct they deem “criminal” based on nothing more than stereotype. And for the millions of people who interact with the police without the benefit of a lawyer, they still can be the targets of warrantless phone searches.
I’m here to tell you, also, to be skeptical of the mirage of the “sanctuary.” After the election of Donald Trump, I remember being CC’d in an email with a number of students of color who wanted to get together to discuss making our college a “sanctuary campus.” That meant formalizing some of the work that undocumented student advocates had been doing for a while, made much more urgent by Trump’s ascent into power on a tide of white nativism. Every organization, college, town, and city wanted to call itself a sanctuary. Even government officials and city councils wanted to call themselves “sanctuaries” without knowing what that actually entailed—or without knowing they were accessories to anti-immigrant policies.
Although the concept of sanctuary existed within immigrant communities well before 2016, especially to describe churches that took up undocumented people who had deportation orders, there is no one definition of sanctuary. All sanctuaries must adapt to the needs of the people seeking refuge. Perhaps one of the best-remembered acts of sanctuary was Elvira Arellano’s flight into a Chicago church with her son, Saulito, to escape the ICE agents who were pursuing her. (Some view her as the founder of the post-aughts sanctuary movement, though the practice can be traced back to 1980s Los Angeles, where the First Unitarian Church in the MacArthur Park neighborhood took in Central American refugees.) National columnists dragged her through the mud. One, from the Chicago Sun-Times, wrote: “Elvira Arellano is definitely no Rosa Parks. I even doubt that Arellano has any idea who Parks really was.”
In the minds and feeds of many Americans, sanctuary is back in vogue. State legislatures are outlawing gender-affirming care, barring trans kids from playing sports, and proposing to codify their views of drag—a liberatory art form for many queer people—as “perverted.” In response, legislators in more socially progressive states have proposed bills that would turn their states into “sanctuaries” for queer families and children. Last week, the Victory Institute announced a concerted effort in 19 states to offer legal refuge to anyone who arrives there seeking gender-affirming care. The bills would direct law enforcement to reject any out-of-state court judgments seeking to remove kids from the care of their parents because they allowed their children to medically transition, for example. (You’ll remember these efforts are at the center of a Texas law.) One bill would also bar providers from complying with out-of-state subpoenas seeking data about people who get gender-affirming care in the state. Similar efforts to encode legal protections for abortions are underway in places like New York and California.
These legal changes will surely provide a much-needed salve for queer kids and abortion patients as politicians and courts diminish their rights. But there are broader, wider, more national data infrastructures that can make these efforts meaningless. New York and Vermont were two states that encoded “sanctuary” protections for undocumented immigrants, such as letting people get driver’s licenses without requiring a valid immigration status. But New York and Vermont also had existing contracts that allowed ICE to access DMV databases, which meant that as soon as an immigrant got that much-anticipated license that would allow them to commute to work or drop the children off at school with a little less fear, their home address became accessible to deportation agents. Those states changed their laws, and just yesterday Massachusetts became the latest, over its governor’s veto.
The recent Georgetown Law report aims higher, urging Congress to establish a wraparound statute, modeled on the census data protections, that makes it broadly illegal to use information given to the federal government “to the detriment” of anyone who provides it. That ends one “honeytrap,” as the researchers call it. But we will need new defenses to guard against the sale of data by private corporations to government entities. I know it may seem easy to despair—What, am I supposed to just yeet my phone into the sea?—but there are people and communities around you that have been through this before and have devised their own solutions. At the root of abolitionist projects, modern and old, is a commitment to creation.
So here’s my advice: beware of sanctuary “movements” that don’t do anything beyond putting up declarations that certain groups “are welcome here.”
So here’s my advice: beware of sanctuary “movements” that don’t do anything beyond putting up declarations on their websites that certain groups “are welcome here.” While reassuring, press releases don’t change material conditions. After that November email in college, a group of students initiated conversations with the university about calling ourselves a “sanctuary campus,” but that label ended up not being in our best interest—attracting attention to the campus’ policies might have resulted in the loss of state and federal funds for student programming. (Officials in Georgia and Texas threatened to do just that.) Working with undocumented administrators, activists achieved more than they may have if they had allowed the university to pat itself in the back for coming out with a grandiose statement branding itself a sanctuary.
You don’t need to call yourself a sanctuary to offer refuge. At the border, on the Mexican side, there have long existed organizations that provide deported immigrants with the things they need the most: showers, drinking water, warm meals, and beds. They keep immigrants safe from police, fraudsters, and anyone else who might be willing to exploit their vulnerability. They don’t require that you perform some level of “acceptable” citizenship like wear a cap and gown or pay your taxes. And they do this at no cost, though they live humble lives.
To me, this is what’s at the heart of sanctuary: unconditional care for the whole person. Compelling state officials not to comply with the extradition of queer families is significantly easier than ensuring that homeless LGBTQ youth who flee abusive families have adequate shelter, food, and a stable life. If my own experience as an immigrant serves this scenario well, queer kids and abortion patients are going to need money. They’re going to need lawyers willing to seek justice with them. And they’re going to need a support system that protects them from state violence.
What else can “sanctuary” mean?
P.S.—So many of you sent me good playlists and songs last week that have kept me sane while unpacking. Here’s one I’ve been hooked on: Veranito.
A huge thank you to Aura Bogado, of Reveal News, for additional context and history on the origins of the sanctuary movement.