Gov. Jared Polis quietly issued guidance this week barring state agencies from releasing Coloradans’ personal information to federal entities that plan to use the data for the sole purpose of immigration enforcement.
The directive issued Wednesday prevents U.S. Immigration and Customs Enforcement agents and other federal agencies from gathering data unless they have a court order or are investigating a crime.
Information — such as names, birthdays, social security or tax identification numbers, driver’s licenses and addresses — may not be released if its use is “solely related to federal immigration enforcement,” the guidance states.
The four-page executive guidance was issued without public notification and comes after lawmakers were working on a bill this year to outlaw information sharing for immigration purposes between ICE and state offices such as the Colorado Division of Motor Vehicles. The Colorado Sun learned of the guidance on Friday.
A spokesman for Polis, Conor Cahill, said the directive was “internal guidance provided to our agencies … and not an executive order.” Since it was meant for internal purposes, it was not made public.
“This guidance is about protecting the data of all Coloradans,” Cahill added.
Immigrant advocates have worried that ICE is using data from the DMV, which offers driver’s licenses to people living in the U.S. unlawfully, to help with federal immigration enforcement. The guidance is likely to cause further friction between Colorado and the Trump administration when it comes to immigration enforcement.
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“My administration is focused on a Colorado that works for all, and in order for us to uphold that vision, we must make sure that Coloradans trust that they can seek assistance from the state without making undue sacrifices related to data privacy,” Polis, a Democrat, wrote in the guidance. “As our ability to utilize data to inform and improve government services for Coloradans expands, we also want to ensure that executive branch departments and agencies have policies that protect consumer data and privacy, including when handling requests for information from the federal government or from third parties.”
State Sen. Julie Gonzales, D-Denver, said some people living in the U.S. illegally are so fearful about the state sharing their personal information that they’re reluctant to seek health care or coronavirus-related aid.
“I’ve heard from constituents who were too afraid to seek treatment, to sign their kids up for health insurance, to interface in any way with state government,” she said. “That fear is palpable.”
Gonzales said she’s appreciative of the guidance, but thinks more could be done to shore it up.
State agencies are directed under the guidance to create a log of each individual data request, including a summary of the purpose, information about the requestor and whether it was granted or denied.
Under the guidance, any data that is released must have a notice attached warning that it may “only be used for active criminal investigation and must not be utilized for federal civil immigration purposes.”
The guidance gives state agencies 30 days to implement it and directs agencies to submit quarterly logs of the information requests to the governor’s office.
A spokeswoman for U.S. Immigration and Customs Enforcement said the agency was still reviewing the guidance on Friday. ICE has said that any limits on information sharing puts public safety at risk.
Immigration advocates say the guidance from Polis is a good starting point, but they worry it has holes that can be exploited. For instance, said Arash Jahanian, director of policy and civil rights litigation at the Denver-based, immigration-focused Meyer Law Office, said that ICE could simply claim it was working on a criminal investigation to get around the directive.
“The governor’s guidance here represents a good first step, but does not go nearly far enough,” he said.
Jahanian would like to see guidance that only allows state agencies to release personal information when a court order is issued.
“Is the guidance a step in the right direction? Yes, absolutely,” said Hans Meyer, who runs the Meyer Law Office. “But does it stop ICE from mining DMV databases? No. Is personal information of immigrant communities safe from ICE access? No. There is still a lot of work that needs to be done. We know this is a complicated issue that takes time to figure out and get right. But where there is a will, there is a way.”
Jahanian and Meyer were working with Gonzales on a bill that would have limited the personal information that state departments, including the Division of Motor Vehicles, can release to other government agencies such as ICE and U.S Customs and Border Protection. The effort was sidelined, however, because of the coronavirus crisis, which paused the 2020 lawmaking term in Colorado.
“We are realistic that things will probably not happen this session and we are looking at the 2021 session for meaningful improvements on these policies,” Jahanian said.
Earlier this year, a similar data privacy law enacted in New York prompted the U.S. Department of Homeland Security, which oversees ICE, to cut off residents in that state from enrolling in or renewing their access to so-called trusted traveler programs, like Global Entry.
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