Illinois and Chicago Sue DHS Over Facial Recognition on Children

What happened: On January 12, 2026, Illinois and Chicago filed suit against DHS in federal court. The complaint centers on video showing Border Patrol agents using facial recognition on teenagers near East Aurora High School in October 2025. The lawsuit alleges DHS has used Mobile Fortify over 100,000 times nationwide, on citizens and non-citizens alike, without consent, without oversight, and in potential violation of Illinois' biometric privacy law.

"Can You Do Facials?"

October 10, 2025. A group of teenagers stands outside East Aurora High School in Aurora, Illinois. Border Patrol agents approach. In video captured at the scene, one agent asks another: "Can you do facials?"

An agent points his phone at a teenager's face. Photo taken. Face scanned. Data uploaded to federal databases.

State Rep. Barbara Hernandez watched the footage. "It was very disturbing just to overall see that they were taking a picture of this young adult, a minor... without his consent."

This wasn't an isolated incident. According to the lawsuit, DHS deployed Mobile Fortify around June 2025 and has used it over 100,000 times since, including "extensively" during interior enforcement in Illinois. The lawsuit documents additional incidents:

Jesus Gutierrez was handcuffed and face-scanned despite claiming U.S. citizenship
Two Aurora high school teenagers were facial-scanned, including one who asserted he was a citizen
An unknown man was ordered to remove his hat so agents could photograph his face

What Mobile Fortify Actually Does

Mobile Fortify is a smartphone app that turns every ICE and Border Patrol agent into a walking biometric surveillance terminal. Using their government-issued phones, agents can:

Photograph your face and search it against federal databases
Capture your fingerprints without physical contact
Query multiple systems including CBP's Traveler Verification Service, Border Patrol databases, and the Office of Biometric Identity Management's Automated Biometric Identification System

Here's the part that makes it different from earlier biometric tools: DHS doesn't give you the option to refuse. They don't distinguish between citizens and non-citizens at collection. And they store all images and fingerprints for 15 years, regardless of whether you're arrested, regardless of whether you're actually in the country illegally, regardless of whether you're a U.S. citizen.

The Electronic Privacy Information Center's Jeramie D. Scott put it plainly: "ICE is now seemingly using it without any guardrails to identify anyone they deem suspicious. This is what dystopian nightmares are made of, this kind of continual expansion of surveillance without any real oversight or restrictions."

Illinois' Biometric Privacy Law

Illinois has the strongest biometric privacy law in the country: the Biometric Information Privacy Act (BIPA). Passed in 2008, it requires companies to get written consent before collecting fingerprints, facial scans, or other biometric data. Violators face damages of $1,000 to $5,000 per violation.

BIPA has teeth. Google, Facebook, Clearview AI, and hundreds of other companies have faced lawsuits under the law. Clearview settled with the ACLU in 2022, agreeing to stop selling its facial recognition database to most private companies.

The lawsuit argues that when Illinois passed BIPA, legislators wrote its intent directly into the state constitution: to protect against the risk that "the government might use newly available technology to develop 'a general information bank' that would collect and monitor personal information."

DHS is doing exactly that. The complaint alleges federal agents are "scan[ning] biometric information of Illinois residents without consent, without individualized suspicion and to retain that information for fifteen years."

The Federal Shield Problem

Here's the legal challenge: BIPA applies to private companies, but federal agents can claim immunity under the Supremacy Clause. The federal government generally can't be bound by state laws when carrying out federal functions.

The lawsuit threads this needle by arguing:

DHS exceeded its statutory authority by expanding biometric surveillance far beyond border enforcement
Mobile Fortify's use in interior enforcement (far from any border) contravenes decades-old federal limits
The Illinois Constitution's privacy protections create affirmative obligations the federal government has overridden without authorization

The case asks the court to halt "unlawful expansion of biometric and visual surveillance" in the interior of the country.

The Error Rate Problem

Facial recognition doesn't work as well as its vendors claim. The technology is particularly unreliable for people with darker skin tones, women, and young people, the exact demographics being targeted in enforcement sweeps.

ACLU attorney Nathan Freed Wessler, who has litigated facial recognition cases, noted: "This kind of face recognition technology is glitchy. It's far from exact."

Court documents from a separate case reported by 404 Media show Mobile Fortify scanned the same woman twice during a single encounter and returned two different identities. Same face. Different names. ICE still treats these matches as "definitive."

We've documented the full scope of Mobile Fortify, including ICE officials telling lawmakers they'll prioritize app results over birth certificates. A tool that can't reliably tell who you are is being used to determine whether you belong in this country.

What This Lawsuit Seeks

Illinois and Chicago are asking the court to:

Halt Mobile Fortify's use in interior enforcement (away from ports of entry)
Stop the collection of biometric data from Illinois residents without consent
Force DHS to delete biometric data already collected without authorization
Establish that federal agents can't override state biometric privacy protections without explicit Congressional authorization

The case was filed in the U.S. District Court for the Northern District of Illinois, Eastern Division. It's one of several legal challenges to the Trump administration's surveillance expansion, but unique in combining a state, a major city, and the country's strongest biometric privacy law.

Congressional Pushback

This lawsuit isn't the only resistance. Rep. Bennie G. Thompson (D-MS), ranking member on the House Committee on Homeland Security, introduced legislation that would ban DHS from using mobile biometric apps like Mobile Fortify outside of ports of entry and require destruction of biometric data collected from U.S. citizens.

48 House Democrats have demanded answers about DHS's biometric expansion. Red states like Montana have passed laws requiring warrants for biometric data access.

But with a Republican-controlled Congress and an administration actively expanding surveillance capabilities, legislative fixes face long odds. The courts may be the only check left.

What This Means

A state and the third-largest city in America are now suing the federal government over facial recognition of children. Take a moment to process that.

The surveillance infrastructure built over the past two decades, justified as border security, counterterrorism, visa enforcement, is now being used on teenagers walking to school. On citizens who have to prove they belong. On anyone an agent decides looks "suspicious."

Mobile Fortify represents the final step in normalizing biometric surveillance. It's no longer fixed cameras at airports and border crossings. It's every agent with a smartphone, anywhere in the country, with the power to capture your face and fingerprints and store them for 15 years.

The question this lawsuit forces: Do states have any power to protect their residents from federal biometric surveillance? Or has the surveillance state grown beyond any democratic check?

Published: January 22, 2026