Arizona 1070 (2010) and Privacy

Background

Beginning in the 19th Century the U.S. government began record-keeping on Chinese immigrants. Chinese laborers were required to register and obtain a certificate of residence under the Chinese Exclusion Act of 1882. At that time, state and local authorities zealously enforced this federal law. The federal government has held for itself the sole right to enforce immigration laws, including immigrant record-keeping. In 1941, for instance, the U.S. Supreme Court struck down a Pennsylvania statute requiring aliens to register annually as in conflict with similar federal legislation.

Beginning in the 1970s, state and local governments began enacting immigration legislation of their own which presented far more ambiguous issues for courts to decide. The first such laws were concentrated primarily in the employment and welfare arenas. States and localities became more aggressive in the area of immigration enforcement within their jurisdictions by classifying immigration violations as criminal offenses. Law enforcement officers were given authority to stop and detain individuals on the flimsiest of suspicions, which made it necessary to identity individuals and their citizenship status. To meet this obligation, police officers were provided access to various databases containing personal information held by private sector companies and federal law-enforcement agencies.

On April 23, 2010, Arizona Senate Bill 1070 became state law. The bill was sponsored by Arizona State Senator Russell Pearce. The law will go into effect on July 30, 2010.

Section 1. Intent The legislature finds that there is a compelling interest in the cooperative enforcement of the federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.
The law provides protection for local and state law enforcement officers who hold or arrest persons based on "reasonable suspicion" that a person is unlawfully present in the United States. Anyone arrested will have their immigration status confirmed before they are released. The law constrains the conduct of motor vehicle drivers and occupants who stop on a street, roadway, or highway and passenger that enter the vehicle. The state laws states that the Federal Government must verify the immigration status of persons held pursuant to 8 United States Code Section 1373(c).
Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
The law extends enforcement obligations on public assistance agencies, private citizens who may bring an action in Arizona State Superior Court to challenge any official or agency of the state, county, city, town, or other state political subdivision for non-compliance with Arizona 1070. The law allows a vehicle to impounded if a passenger in the vehicle is suspected of not lawfully being in the United States. The risks to those determined to be lawfully in the United States extends to "harbor or shield[ing]" and alien from detection. Businesses are required to use E-Verify by the state of Arizona.
After December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program AND SHALL KEEP A RECORD OF THE VERIFICATION FOR THE DURATION OF THE EMPLOYEE'S EMPLOYMENT OR AT LEAST THREE YEARS, WHICHEVER IS LONGER.
Businesses are threatened with a suspension of all licenses to do business within a jurisdiction and the state if suspected of having persons employed who are not lawfully in the United States. A second offense may lead to a permanent revocation of all licenses related to conducting business in the state. The law's impact on businesses extends to the hiring of contractors and subcontractors. They are obligated to terminate the employment of all unauthorized persons. The law does allow for judicial discretion under the enforcement of provisions of the law related to businesses, and limitations on the number of days that are allowed for a first violation. Citizenship may be proven by producing:
A valid Arizona Drivers License
A valid Arizona Nonoperating Identification License
A valid Tribal Enrollment Card or other form of Tribal Identification

Immigration status may be determined by a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; the immigration and customs enforcement agency; the US Customs and Border Protection under existing federal law.

EPIC's Interest

Police officers have access to an extraordinary range of detailed personal information in government databases that could easily give rise to further investigations unrelated to the reasons for the initial detention. Moreover, much of the information contained in these databases is often inaccurate and unreliable. Some of the information is obtained from private record systems and was never intended to be used for law enforcement purposes.

This would in effect violate well established privacy protections found in the Federal Privacy Act, which establishes fair information practices to protect the rights of individuals:

The Code of Fair Information Practices is based on five principles first outlined by HEW (Health, Education, Welfare) Advisory Committee on Automated Data Systems. The Advisory Committe was established in 1972, and the report released in July:

1. There must be no personal data record-keeping systems whose very existence is secret.

2. There must be a way for a person to find out what information about the person is in a record and how it is used.

3. There must be a way for a person to prevent information about the person that was obtained for one purpose from being used or made available for other purposes without the person's consent.

4. There must be a way for a person to correct or amend a record of identifiable information about the person.

5. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precautions to prevent misuses of the data.

1973 HEW Study 1974 Privacy Act 1977 Privacy Protection Study Committee Report

In the context of Arizona 1070, the compelled disclosure of actual identity in circumstances where not delivering proof of identity to a law enforcement officer or government agency agent may result in detention or arrest raises significant Constitution concerns. The scope and problems associated with the government record systems described underscore the need to ensure that an investigatory stop not become the basis for an extensive fishing expedition across government databases.

Local and State Immigration Enforcement

Since the September 11, 2001 terrorist attacks the United States has expanded its border security programs. First by creating the Transportation Security Administration, which became part of the post-9/11 Department of Homeland Security. The focus has been on hardening the US passport and visa programs, and instituting new requirements for border entry. The Department of Homeland Security Travel Visa Waiver Program administered by theTransportation Security Administration.

The Electronic System for Travel Authorization (ESTA) is a new fully automated, electronic system for screening passengers before they begin travel to the United States under the Visa Waiver Program. Voluntary ESTA applications may be submitted at any time prior to travel to the United States, and Visa Waiver Program travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States.
Some of these changes means that US citizens traveling to Canada, Mexico or the Caribbean must have passports if they wish to return to the United States. The federal government effort also extends to hardening state issued drivers licenses for US border states through the Western Hemisphere Travel Initiative, which went into effect in June 2009. New programs like US VISIT increase the type and amounts of information collected on visitors to the United States.

A resurgence in recent years of states and some local jurisdictions entering the realm of federal immigration enforcement has been on the rise. The Constitutional Dimension of Immigration Federalism.

Other state and local governments immigration enforcement efforts:

Texas - "Operation linebacker"
Hazleton, PA -- Lozano v. City of Hazleton
Garrett v. City of Escondido,

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