Data privacy protections for undocumented immigrants sought with proposed Colorado bill

After learning that state employees appear to have helped federal immigration authorities obtain undocumented Coloradans’ personal information — confirming “the worst fears of the immigrant community” — legislators want stronger data privacy protections in state law.

Proposed legislation, announced Feb. 11, will be sponsored by state Sen. Julie Gonzales and Rep. Serena Gonzales-Gutierrez, both Democrats from Denver.

“It is our responsibility in the state to ensure that all Coloradans have trust in our state agencies,” Gonzales said during a virtual news conference. “That trust has been broken, and it’s on us to make it right.”

Gonzales referred to what happened after a 2013 state law allowed Colorado residents who were not lawfully present in the United States, as well as people with temporary permission to live in the country, to apply for and receive driver’s licenses through the Division of Motor Vehicles.

According to the Colorado Immigrant Rights Coalition, or CIRC, 150,000 undocumented people subsequently supplied their names, addresses and other personal information to apply for driver’s licenses. But in the years following Senate Bill 13-251’s passage, community members began to raise concerns about how their information was being used.

CIRC requested public records showing communication between immigration authorities and the Colorado DMV. Through the Colorado Open Records Act request, CIRC obtained 235 emails showing “consistent and deliberate communication” between DMV staff members and Immigration and Customs Enforcement agents, sent between January 2018 and May 2020.

The emails “show staff in the DMV fraud investigations unit operating as unofficial deputized immigration officers by proactively helping ICE identify, surveil and detain individuals — in all instances without a warrant, order or subpoena,” according to a Feb. 11 statement from CIRC.

“This unsanctioned information sharing confirmed the worst fears of the immigrant community, who placed trust in government services by sharing sensitive information to receive a driver’s license as laid out by SB13-251,” CIRC’s statement continued.

According to ICE’s annual report, about 70% of the people whom ICE agents detained inside the United States last year had criminal convictions. The agency can also detain people after they’ve been charged with crimes by law enforcement, but before they’ve been found guilty or innocent by a U.S. court. That happens in around one-fifth of immigration arrests.

In approximately 1 in 10 cases, ICE agents detained people without pending criminal charges or convictions. Unlike U.S. citizens suspected of crimes who are fighting charges in court, immigrants suspected of being in the country illegally have no right to an attorney in deportation cases.

The emails CIRC obtained through its information request showed DMV employees frequently ran facial recognition software and performed other functions to help ICE agents identify undocumented immigrants — with no evidence the state employees were helping the agents because of a criminal case, warrant or court order, according to CIRC. Slightly more than half of the 235 emails that CIRC says it identified through the CORA request were initiated by state employees to ICE agents.

“ICE maintains that cooperation with local law enforcement is essential to protecting public safety,” ICE spokesperson Alethea Smock wrote in an email when asked for comment on the upcoming legislation. Smock referred additional questions to the Colorado DMV.

Polis administration on board with changes

A spokesperson for the Department of Revenue, which houses the DMV, said the state had worked to strengthen data privacy protections since CIRC submitted its CORA request.

The results of the request revealed that “communications between a few department employees and ICE agents were inappropriate and unprofessional,” the spokesperson, Meghan Tanis, wrote in an email. “While these actions were within our statutory authority, the language used was not in alignment with the ideals and values of the department.”

The department provided formal counseling and training for the employees involved, Tanis said. It also restructured the Motor Vehicle Investigations Unit, retrained staff on data sharing, and ensured that “any request solely for the purpose of civil immigration enforcement is immediately denied.”

Guidance issued by Gov. Jared Polis in May 2020 directed state agencies not to share information with federal agencies solely for immigration enforcement. The upcoming bill, which was put on hold from last year due to the coronavirus pandemic, would strengthen the governor’s guidance and incorporate it in state law.

The Department of Revenue currently requires requests from federal agencies for personal identifying information to be reviewed and approved by a supervisor before any information is released, Tanis said, and DMV employees cannot initiate contact with a federal agency without a supervisor’s approval.

“We have regularly met with advocates of the immigrant community to ensure transparency and trust can be rebuilt,” she wrote.

The DMV’s assertion that the communications were within its legal authority is “concerning,” Gonzales-Gutierrez said.

“The level in which the cooperation … was happening between this federal entity, ICE, and our local departments is just really, extremely concerning in that this is people’s personal, identifiable information,” she told Newsline.

“When we passed the driver’s license policy back in 2013, we made a social contract with the immigrant community,” Gonzales said in an interview. “We said, ‘Your information is safe — come forward, share your information, because our roads will be more safe if we have more licensed drivers who know the rules of the road on our Colorado roads and highways.'”

Gonzales had planned to introduce a similar data privacy bill in 2020 before the pandemic forced lawmakers to leave the Capitol and focus only on urgent needs when they returned in late spring.

Since then, Gonzales-Gutierrez has joined in the effort, and the pair have had numerous conversations with immigrant advocates, the DMV, the governor’s office and other state agencies to craft a bill everyone supports.

It took some effort to get the administration on board, the legislators said. Gonzales said she was pleasantly surprised that Polis championed the data privacy bill in his State of the State speech on Feb. 17.

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“I think that this time last year, the state would have said, ‘There’s no problem here, we’re fine,'” Gonzales said. “And it’s why I think the CORA was so important, because it laid bare that there was actual collaboration happening … We did partner with the governor’s office in doing the guidance before that, so it wasn’t like we were adversarial or anything, but once that information, once that CORA request was uncovered, it really, I think, opened everyone’s eyes to the need for lasting policy change.”

That includes legally binding requirements and consequences for state employees who break the rules, the bill’s supporters say.

The proposed bill “puts processes in place to ensure that Coloradans’ personal information is being used to enhance that safety and wellbeing, rather than to harm the community,” Arash Jahanian, director of policy and civil rights litigation for Meyer Law Office, said during the Feb. 11 news conference.

“When Coloradans entrust the government with their personal information, they have expectations that the information will be safeguarded,” Jahanian said. “As we have seen clear as day in the last four years, ICE too often acts as a rogue agency, brazenly skirting our constitutional and legal protections.”

The bill would require ICE agents to secure a criminal warrant, subpoena or order from a judge before requesting personal identifying information from state employees.

“This level of independent review subjects requests for information to the constitutional safeguards that govern the enforcement of our criminal laws,” Jahanian said. “We know even under the governor’s current guidance, the agency will say it is investigating crime when in fact it is simply looking for potential subjects for deportation.”

The bill defines personal identifying information as names, birth dates and locations, Social Security or tax identification numbers, drivers license or ID card numbers, work authorization documents, and much more. Any state employee found to have intentionally broken the rules by sharing information would be subject to civil penalties.

Undocumented Coloradans fear accessing pandemic relief, health care

Because undocumented immigrants — and their immediate family members, often U.S. citizens — are worried that applying for government benefits or seeking health care would expose their personal identifying information, many people don’t access needed services during the pandemic, said Maria Albañil-Rangel, immigrant advocacy coordinator with Tri-County Health Network.

“Families are scared and in some cases decide to forgo accessing public benefits which they are eligible for,” Albañil-Rangel said during the news conference. “They forgo … reaching out and accessing mental health services, which are already pretty limited. They forgo sometimes signing enrollment applications to enlist their children in day care.”

Even when undocumented people need medical services or emergency procedures, they ask, “Who is going to have this information?” Albañil-Rangel said. “What is going to happen if somebody else shares this information?”

Similar fears contribute to the racial and ethnic disparities in coronavirus vaccination rates, the bill’s sponsors suggested.

Gonzales and Gonzales-Gutierrez worked with the state Department of Public Health and Environment and Denver City Council members to bring drive-thru vaccine clinics to Denver neighborhoods. They strove to boost vaccination rates among people of color, including immigrants.

“I firmly believe that immigrant communities should have easy access to the vaccine, just like everyone else, and the government, the state of Colorado, should be working to regain the trust of members of our community that are far too often left behind,” Gonzales-Gutierrez said during the news conference.

So far, state data shows white people are far more likely to be vaccinated than their Black, Latino and Asian counterparts. While 68% of Colorado’s population is white, white people represent 74% of Coloradans who’ve been vaccinated as of Feb. 13.

Meanwhile, Hispanic people comprise around 22% of Colorado’s population, according to the American Community Survey, but only 4.9% of Coloradans who received the COVID-19 vaccine.

Black people make up 3.9% of the state’s population but only 2% of those vaccinated, and Asian people represent 3.1% of all Coloradans and 1.7% of the vaccinated population.

“I know it can be really hard — the fear is real — but you don’t need an ID,” Gonzales-Gutierrez said. “You don’t need insurance to be able to access the vaccine, and I just think that is incredibly important, and I want that message to be spread widely.”