Protecting State Driver’s License Information

Protecting State Driver’s License Information

Last updated JUNE 2020


Background

Currently, 16 states plus the District of Columbia and Puerto Rico have enacted laws making driver’s licenses available to eligible state residents regardless of their immigration status.[1] Several other states are considering similar policies.

Under the federal REAL ID Act of 2005,[2] states may issue driver’s licenses to applicants who are U.S. citizens, lawfully residing immigrants and/or people who cannot prove that they are authorized to be in the U.S. REAL ID–compliant licenses may be provided only to lawfully residing individuals. States may also issue licenses that do not satisfy REAL ID Act criteria (“non–REAL ID licenses” or “standard licenses”) to citizens and immigrants of all statuses, though state laws and rules for obtaining these licenses differ.

States have good reason to ensure that information provided to driver’s license agencies is not made available to U.S. Department of Homeland Security (DHS) agencies such as U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) for immigration enforcement purposes.[3] Many of the state laws authorizing issuance of licenses to residents regardless of their immigration status include provisions limiting affirmative disclosure of department of motor vehicles (DMV) information. But DHS may have independent access to some of that data through means such as electronic networks, or simply by requesting information. State officials may be unaware of how these systems work or of whether their agencies comply with state rules.

This issue brief outlines some steps that states have taken and that advocates can pursue to protect confidential information provided to their DMVs. We provide links to the laws that have been enacted and policies that have been adopted. We do not suggest that these laws and policies are all models for other states. They are generally a result of negotiations or compromises that were achievable in a particular year. Some laws and policies are more comprehensive or stronger than others. Protecting consumer privacy often requires a multi-year strategy, and an imperfect protection may be the first step in the process.

To protect drivers’ privacy, you will need to understand the mechanisms by which DHS and its component agencies obtain information from driver’s license databases

The mechanisms DHS uses to obtain information from driver’s license databases differ from state to state. Potential means of obtaining the information include public records act (PRA) requests or having conversations with the DMV or the state attorney general’s office.

For a summary of those mechanisms in California, see How California Driver’s License Records Are Shared with the Department of Homeland Security, which summarizes the results of PRA requests submitted by the ACLU of Northern California and NILC.[4]


To download the issue brief, click on the PDF icon, above.


ISSUE BRIEF CONTENTS

  • Background
  • To protect drivers’ privacy, you will need to understand the mechanisms by which DHS and its component agencies obtain information from driver’s license databases
  • Explore administrative measures and other strategies to limit DHS access to DMV information
  • Litigation may be necessary to accomplish administrative changes limiting DHS access to DMV information in your state
  • Take affirmative steps to ensure that unauthorized individuals are not identified or isolated through application procedures or license issuance
  • Enact legislation to protect the confidentiality of driver’s license information
  • Limit access to photographs and images

NOTES

[1] State Laws Providing Access to Driver’s Licenses or Cards, Regardless of Immigration Status (NILC, Apr. 2020), www.nilc.org/state-laws-providing-dl-access/.

[2] The REAL ID Act of 2005 requires states to meet certain requirements, including proof of lawful presence in the U.S., for their licenses to be acceptable as identification for certain federal purposes. The act also allows for states to issue licenses that do not comply with REAL ID Act requirements.

[3] For an overview of information-sharing mechanisms, see Untangling the Immigration Enforcement Web: Basic Information for Advocates about Databases and Information-Sharing Among Federal, State, and Local Agencies (NILC, Sep. 2017), www.nilc.org/untangling-immigration-enforcement-web/.

[4] (Dec. 2018), www.nilc.org/how-calif-dl-records-shared-with-dhs/.