Advocates who opposed a policy of keeping documents submitted by IDNYC applicants believe the doubts they raised in 2014 have been validated by the legal fight over destroying those papers before Donald Trump becomes president.
“Now they’re saying, ‘If they come for the data, we’re going to burn it,'” says Abraham Paulos, executive director of Families for Freedom. “Well, then why did you keep in in the first place?”
The policy of keeping documents was not part of the original version of the IDNYC law but was added during intense negotiations involving City Hall, the NYPD and advocacy groups.
Some of those advocacy groups—like Families for Freedom and the New York Civil Liberties Union—ended their support for the IDNYC program over the retention policies because they feared the information could be used by federal authorities hunting for undocumented immigrants. Other organizations expressed concerns but continue to support the bill and promoted the ID program.
The fears about the documents have grown more widespread since Trump, who has pledged to deport millions of people, won election. A lawsuit by two Staten Island lawmakers has at least temporarily halted the city from a planned purge of the documents in its possession.
Mayor de Blasio recently said that IDNYC, one of his signature achievements, would no longer retain copies of passports, utility bills and other documents submitted by people applying for the card, which is held by more than 860,000 New Yorkers.
For advocates, that move—while welcome—casts a harsh light on the decision to collect the documents in the first place. Still, many immigration advocates think the ID was a positive step.
Obstacles to an idea
New Haven, Conn., was the first city to issue a municipal ID in 2007, and some local advocates had been pushing for New York City to follow suit in order to give a widely usable ID card to the undocumented as well as others who lacked official identification. De Blasio embraced the ID as a candidate and called for it in his first State of the City speech.
From the outset, the idea faced an obstacle: How do you create a tool that will be especially useful for undocumented people without making it a scarlet letter? Attaching museum discounts and other benefits to the card aimed to broaden its appeal so that even citizens would obtain it.
But while that broader usage meant the card itself didn’t necessarily indicate a holder’s immigration status, the documents associated with each application still could. To obtain an IDNYC, a person has to present documents that establish identity and residency. Among the accepted proofs of identity are foreign passports, consular ID, foreign military identification—all of which could indicate a lack of legal presence in the U.S.
The question that triggered tension during the negotiations over IDNYC was whether that material needed to be saved once IDNYC staff reviewed the documents and approved the card.
The first version of the City Council measure that created the program included the language, “The city shall not retain originals or copies of records provided by an applicant to prove identity or residency for a New York City identity card.”
But the language that became law described a very different approach. It permitted the city to, once a quarter, destroying any application documents that had been held for two years. It also created an opportunity to destroy all the documents in the program’s possession “on or before December 31, 2016” and end document retention then—an effort to ensure that the papers could be shredded before an anti-immigrant president took office.
The lawsuit by Assemblymembers Ron Castorina and Nicole Malliotakis, both Staten Island Republicans, argues the state’s freedom of information laws should prevent that destruction of documents. Malliotakis made her opposition to the destruction clause known as early as February 2015.
When IDNYC was being shaped in 2014, “retention to us was something that we absolutely did not want,” Betsy Plum, director of special projects at the New York Immigration Coalition, recalls.
However, “It was critical that the NYPD accept the ID,” she says, because one goal for the ID was for it to be a resource when someone is stopped by police. “For us and the community we work with the NYPD was a really critical partner for us to keep at the table for the ultimate success of IDNYC.”
And the NYPD said it needed the documents to investigate fraud, she says. Plum describes a back and forth between advocates and City Hall over the retention issue. “They came back saying to us: ‘This is the only way it’s going to happen.'”
A mayoral spokesperson says the retention clause was inserted “after consideration from many stakeholders, including NYPD.” In addition to the language permitting destruction after two years or at the end of 2016, the final bill did require a court order or warrant for the documents to be handed over to any third party.
Some advocates believed those safeguards were enough to justify going ahead with the ID. “Once we were able to see a clear path for the data to be protected, we saw the benefits far outweigh the risks,” Plum says.
Another advocate involved in the discussions recalls that the coalition of advocacy groups involved in the negotiations took a vote on whether to maintain or drop support for the measure; a clear majority favored pressing ahead with the ID.
But Families for Freedom did not. Paulos (who was a City Limits intern eight years ago) already harbored concerns about whether the cards themselves could be used to identify undocumented people. “The retention and the data was the deal breaker,” he recalls. “Once we heard that the NYPD was also in the discussion, we pulled out.”
The New York Civil Liberties Union also parted ways with other advocates. “In this bill, the city has not done enough to protect those documents from being used by law enforcement,” NYCLU advocacy director Johanna Miller testified as the bill was about to be signed in July 2014. “While the NYC ID will bring benefits to many people, we are disappointed that the city is inviting New Yorkers to gamble with the stakes as high as prosecution or even deportation.”
A July 2015 report by the Center for Popular Democracy (which supported the New York law) noted that “the vast majority of municipal ID card programs around the country have prohibited the copying or retention of documents presented to prove identity or residency. In New Haven, San Francisco, and Mercer County, NJ, municipal ID card programs have run smoothly for years without copying or retaining personal documents of applicants.”
“The only city-run municipal ID card program that stores applicants’ personal documents is IDNYC,” the report continued.”
No regrets from supporters
In the months after the law’s passage but before it took effect, the commissioner of the city’s Human Resources Administration—which oversees the ID program—issued executive orders clarifying the protections for IDNYC data and the handling of requests for program information by law enforcement.
But concerns persisted. When the first oversight hearing about the law was held in mid-2015, The Fortune Society testified that it was concerned that, despite the safeguards in the bill, “federal, state and local law-enforcement agencies may not have to meet a probable cause standard to obtain documents.”
Fortune Society director JoAnne Page now tells City Limits: “The more vulnerable people are, the most risk that damage will be done,” if personal information falls into the wrong hands. “I don’t think there is a more vulnerable group than undocumented immigrants who have criminal records.”
Plum says despite the Trump election and the lawsuit, NYIC has no regrets about its decision to support the bill despite the retention policy. “If we were all to live in a reality where we only acted as it if the worst possible things could happen and we allows ourselves to educate and serve communities from a lens of total paranoia, I think we’d have a far worse outcome for the communities we serve and protect,” she says. “I think still with the ID the benefits have and still do outweigh the risks. The alternative here would be to have had no IDNYC – to have parent who can’t get into their kids schools, to have families unable to open bank accounts, to have survivors of domestic violence afraid to call the police because they have no way to identify themselves. I don’t think anyone would want to sacrifice any of those benefits.”
The Castorina-Malliotakis lawsuit is next in court on January 18. NYCLU staff attorney Jordan Wells says he believes the city will ultimately be able to follow through on their plans to destroy the documents. “The lawsuit pending in Staten Island is without merit,” he says. “Eventually the city will be able to follow the procedure.”
But Paulos believes damage has already been done. The fact that the city will now destroy the documents, and will no longer keep those generated for new applications, makes it hard to credit the assertions that keeping that paperwork was necessary in the first place. “There’s a lot of mistrust.”