States have taken major strides in enacting laws that make people eligible to obtain driver’s licenses or driving privilege cards regardless of their immigration status. The new laws allow for a distinct, marked license to be issued to drivers who cannot satisfy the immigration, Social Security number, or other document-related requirements for obtaining a regular license under the state’s driver’s license laws. The number of people expected to apply for licenses under the new laws is substantial. In California alone, over 605,000 people obtained a new driver’s license during the first year that the state made the new type of license available.

But many immigrants are concerned that any information provided to state driver’s license agencies will be shared with U.S. Immigration and Customs Enforcement (ICE), or that rogue police officers or state agency employees or agents will contact immigration authorities about people who have such a marked license, because they assume such people are undocumented.

FOIA Request and Lawsuit

In response to these concerns, NILC submitted a Freedom of Information Act (FOIA) request, in April 2014, to the U.S. Department of Homeland Security (DHS) and ICE seeking documents pertaining to information-sharing between ICE and state departments of motor vehicles (DMVs). Because ICE produced so few documents in response, NILC filed a lawsuit against the agencies. As a result, NILC received hundreds of pages of additional documents. NILC also researched the limited number of publicly available documents concerning this matter to try to understand what kind of information-sharing occurs in practice.

What We’ve Learned So Far: Generally

What we have learned so far is that there is a complex network of relationships and systems of communication between state driver’s license agencies and law enforcement agencies, including ICE. We know that ICE is able to use a network called Nlets (described below) to obtain certain information provided in driver’s license applications and subsequent driver history (e.g., accidents and traffic offenses). If ICE is interested in particular individuals, it can use this information to locate them. In addition, in a decentralized manner, ICE Enforcement and Removal Operations (ERO) field offices are in regular contact through email and other forms of communication with state DMVs outside of the formal networks, to obtain information and photos in driver’s license and vehicle registration databases and to collaborate with the state agencies in immigration enforcement.

ICE admits that no federal policy governs how and when it obtains information from DMVs. The agency has also denied that it will “troll” driver’s licenses databases to obtain bulk information about people with marked licenses. At the same time, in its online FAQ about the REAL ID Act, DHS “cautions” against assuming that a driver with a marked license is undocumented, since these licenses are available to U.S. citizens and lawfully present people in many states, and there are many reasons why a person may choose to obtain a non–REAL ID-compliant license. Another reason why people who have a non–REAL ID-compliant license should not be assumed to be undocumented is that, though they may not have had an authorized immigration status when they got the license, their immigration status may have changed since then. Nevertheless, there is evidence that, in some instances, ERO field offices have requested bulk information from DMVs about drivers with particular kinds of licenses or anybody whose vehicle is registered at a particular address.

What We’ve Learned So Far: Specifics

Here are some specifics about what we’ve learned from the documents obtained through the FOIA request and lawsuit—and links to some of those documents.

DMV databases are a longstanding, important source of information for ICE and other law enforcement agencies. This has been true since long before states started issuing “marked” licenses.

DHS collaborates with DMVs and uses DMV databases in multiple ways:

• To locate people for immigration enforcement purposes. DHS uses DMV databases to locate particular individuals. According to immigration expert Margaret Stock, “When DHS wants to find someone, the primary government database it relies upon is the driver license database.” And, according to the U.S. Government Accountability Office, ICE agents consider the data in DMV records, among others, to be more current and reliable than the DHS address database.
• To use the DMVs’ technological capacities. ICE relies on DMVs’ use of facial recognition software to identify and locate targets, and has asked DMVs to “run” the vehicles at a particular address to determine who lives there.
• To ensure that the license a particular person is issued is marked. For example, in Nevada an ICE ERO office wanted to provide immigration information to the state so that the DMV would revoke a person’s regular license, requiring the person to obtain a driver authorization card instead.
• To collaborate in immigration enforcement. ICE and DMVs have in some cases collaborated to draw certain people to a DMV office so that ICE can arrest them, and DMV employees have in some instances reported to ICE people they suspect are undocumented.
• To obtain or try to obtain bulk information. For example, DHS has asked for information about people with temporary visas in order to identify individuals who could be deported.

But no federal policies appear to govern ICE access to or use of DMV data.

• As a DHS staffer admits in an email message obtained through the FOIA request, “We don’t have any specific policy guidance on when or how to request DMV data and I’m not aware of anything in the works to document beyond the common thread of having an information need based on a need-to-know, which flows from an ongoing investigation or seeking a particular wanted individual.”
• At the same time, in its FAQ (“for the Public”) about REAL ID, DHS “cautions against assuming that possession of a noncompliant card indicates the holder is an undocumented individual, given that several states issue noncompliant licenses for reasons unrelated to lawful presence.” But this cautionary note is not reflected in official policies.
• As a result of the failure to provide guidelines, at least some ERO field offices have developed their own “initiatives” aimed at targeting people for immigration enforcement by using information submitted to DMVs.

ICE has not been forthcoming about how it obtains DMV information.

• ICE claims that it obtains DMV data primarily through an entity called Nlets, which stands for “National Law Enforcement Telecommunications System.” According to its website, Nlets is “a private not for profit corporation owned by the States that was created over 45 years ago by the 50 state law enforcement agencies.”
• But ICE did not produce documents showing how or when it uses Nlets.
• In fact, ICE ERO field offices appear to communicate regularly with state DMVs by email or other informal means that are unregulated and unaccountable. Despite any claim to the contrary, email exchanges appear to occur whether or not an automated system has been used. The communications have included: obtaining driver’s license photos, obtaining a range of information about the license-holder or vehicle registration, and offering to help in the apprehension of a person sought by ICE. The information provided by DMV employees includes materials that would not be available through Nlets.

ICE’s explanations of when and how it uses DMV information are incomplete or misleading.

• ICE claims that it uses DMV data primarily to locate already-identified priority targets, and that it does not troll DMV records to identify enforcement targets.
• But that claim is inconsistent with documents revealing that ICE asked a DMV to “run” all the vehicles at an address, encouraged DMVs to force undocumented drivers to obtain a “marked” license, or sought bulk data.

If ICE tracks information-sharing with DMVs, it hasn’t made those records public, and it didn’t provide them in response to the FOIA request.

• At least some ERO field offices have signed an information use agreement or memorandum of understanding with state DMVs allowing them electronic access to driver’s license and motor vehicle data.
• Under those agreements, users must keep logs of users, dates and times accessed, purpose accessed, subject of inquiry, name of user obtaining access, and copy of use agreement.
• But ICE did not produce any such records in response to the FOIA request, and they are not publicly available.
• ICE ERO records of communications with DMVs are episodic, random, and unsystematic. ICE produced no documents at all from many ERO field offices and widely varying numbers of documents from others, providing no reasonable explanation for the inconsistencies.

Recommendations

For the Department of Homeland Security and U.S. Immigration & Customs Enforcement:

ICE must establish clear and public policies binding on ICE Enforcement and Removal field offices regarding when and how its agents can obtain information from state DMVs. Under these policies:

• ICE should not be permitted to make bulk requests for state DMV information (such as information regarding all the drivers with particular visas or particular kinds of licenses, or the registrations of all the vehicles at a particular address), whether through national or state criminal justice networks or through informal means such as emails or phone requests.
• ICE should not seek or obtain DMV driver or vehicle registration information on individuals without providing a court order or subpoena.
• ICE should not ask a state to use, or rely upon a state’s use of, facial recognition software for driver’s license photos.

DHS should review and make public ICE’s use of DMV information on an ongoing basis.

The DHS Office of Inspector General should regularly audit, investigate, and publicly report on ICE’s use of DMV information.

The DHS Privacy Office should conduct a privacy impact assessment on the systems used and effects of information-sharing between DMVs and ICE.

For States:

States should adopt policies…

• requiring ICE to present a subpoena or court order in order to obtain DMV driver and vehicle registration information
• ensuring that ICE access to driver and vehicle registration information through national or state criminal justice networks is regulated to the extent possible
• restricting DMV personnel from providing driver’s license and vehicle registration information to ICE through informal means, such as emails or phone calls
• limiting the use of facial recognition software and photo-sharing for immigration enforcement purposes

States should audit and make public any information regarding DMV disclosure of driver or vehicle registration information.

States should adopt the broadest possible confidentiality and antidiscrimination protections, audit whether these protections are being observed, and limit collection and retention of information that might reveal immigration status or be used for immigration enforcement.

States should make public their current practices and policies regarding sharing of DMV driver and vehicle registration information with ICE.

*For footnotes and bibliography, please reference the PDF version of this resource below.

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