On State Employees Collaborating with ICE

I’ve been waiting to update on this until I had definite information, but it’s been too long so I’m going to tell you what I know.

The incidents in this article are from a few years ago before two executive orders and two laws that all sought to prevent state employees from collaborating with ICE. The two laws are 20 V.S.A. § 4651 and 23 VSA § 104 (more about each of these is you scroll down). Rumor has it that the NYTimes is planning a retraction.

However it is still not clear if there are loop holes in our existing law that make it possible for the fed to scan our databases and use technology that we do not use or authorize (more about this below as well). Please know that any loop holes are absolutely not in the spirit of the law and we will be working next session to close them.

ALSO—there was a recent article about federal detainees in Vermont correctional facilities. While there is an official statement forthcoming on this issue as well, I would like you to know that while Corrections has contracts to house federal detainees temporarily at a few locations, these detainees are not from ICE. The State of Vermont has an agreement with the US Marshals Service to house up to 60 (50 men and 10 women) detainees. The State charges the feds $130/day for use of these beds. Only people who are being detained for federal offenses are housed in the beds—not people serving sentences.

The Commissioner says these people are not "ICE cases". He says "We get very few of them. The last one, to my recollection was well over a year ago and they cannot be held by Our DOC for more than 48 hours." The Commissioner thought that the limit on the hold was a policy instituted by the Shumlin administration. (Again we are looking into this in more depth.)

MORE DETAILS: 20 V.S.A. § 4651: 20 V.S.A. § 4651(b)(2) and (3) prohibit a “public agency” (which includes all employees of the agency) from knowingly disclosing “personally identifying information” to a federal agency or official for the purpose of registration of an individual based on personally identifying information, or using public agency money or personnel to “assist in creating or enforcing any federal government program for the registration of an individual based on his or her personally identifying information.” “Personally identifying information” is defined as including national origin, immigration status, gender, race, color, and other characteristics.

Based on the New York Times and Washington Post articles, VT DMV was sharing photographs, and perhaps other information, with ICE for immigration enforcement purposes. It is arguable that photographs could reveal a person’s gender, race, color, and national origin. Certainly, a photograph with additional information might reveal this information. It is also arguable that ICE maintains databases that register individuals based on their immigration status.

Therefore, based on these two newspaper articles, it seems 20 V.S.A. § 4651 may apply. However there are two important caveats.

The New York Times article indicates that the ICE requests were made in 2014-2017, and VT DMV has indicated that it stopped providing information in 2017. 20 V.S.A. chapter 207 only went into effect March 28, 2017. 20 V.S.A. § 4651 has a “carve out” for two federal laws, 8 U.S.C. §§ 1373 and 1644. 8 U.S.C. § 1373(a) states that a “State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” The result seems to be that, regardless of 20 V.S.A. § 4651, VT DMV employees can voluntarily disclose information relating to immigration status to ICE.

23 VSA § 104: Pursuant to 23 V.S.A. § 104(b) and (c) DMV shall not furnish copies of photographs without the written consent of the person “except for requests from government agencies or persons acting on behalf of government agencies” and if the request is by a governmental agency for a substantial database of photographs or documents containing personal information, DMV shall notify the Speaker, President Pro Tempore, and Attorney General. 23 V.S.A. § 104(d).

It should be noted that the New York Times referred to a VT law concerning biometric data and 23 V.S.A. § 634(c) prohibits DMV from implementing any procedures for identifying applicants for licenses, permits, or nondriver identification cards that involve biometric identifiers. A photograph may be considered biometric data. However, this law does not specifically apply to the sharing of such data and DMV has indicated that, as of 2017, it no longer runs the facial recognition software on its database of photographs.

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