Sanctuary States, e-Verify, biometric data laws - 'They punch a time clock using their fingerprints...'

Sanctuary states, which are jurisdictions that limit cooperation with federal immigration enforcement, do not explicitly "get around" E-Verify by using biometric data protection arguments. Instead, the relationship between sanctuary policies, E-Verify, and biometric data protection involves distinct legal, policy, and privacy considerations. Let’s break this down:

1. What is E-Verify?

E-Verify is a federal electronic system administered by the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA) that allows employers to verify the employment eligibility of new hires by checking their information against federal databases. It primarily relies on data such as names, dates of birth, Social Security numbers, and immigration status, but it does not directly collect or use biometric data (e.g., fingerprints, facial scans, iris patterns) for verification in most cases.

2. Sanctuary States and E-Verify

Sanctuary states or cities typically adopt policies that restrict local law enforcement, public agencies, or businesses from cooperating with federal immigration authorities, such as U.S. Immigration and Customs Enforcement (ICE), except in specific circumstances (e.g., serious crimes). Regarding E-Verify:

• No Uniform Ban: Sanctuary states do not universally prohibit the use of E-Verify. Some, like California, allow businesses to use it voluntarily but restrict mandatory participation in certain contexts.

• State Laws and Limits: For example, California’s Immigrant Worker Protection Act (AB 450, enacted 2017) prohibits employers from voluntarily allowing immigration enforcement agents to access employee records or worksites without a warrant and requires employers to notify workers of immigration inspections. However, it does not ban E-Verify use outright. Instead, it focuses on protecting undocumented workers from enforcement actions.

• Voluntary vs. Mandatory: Some sanctuary jurisdictions resist state-level mandates to require E-Verify for all employers, arguing it overreaches into local control, burdens businesses, or disproportionately harms immigrant communities. They may frame this resistance as protecting worker rights rather than directly invoking biometric data.

3. Biometric Data Protection Argument

Biometric data protection laws focus on regulating the collection, use, storage, and sharing of biometric identifiers (e.g., fingerprints, facial recognition, iris scans) due to their sensitive, unchangeable nature. Here’s how this intersects with E-Verify and sanctuary policies:

• E-Verify and Biometrics: Currently, E-Verify itself does not require biometric data for standard employment verification. However, concerns arise with related systems or potential expansions. For instance:

  
  

  • The DHS’s Office of Biometric Identity Management (OBIM) stores biometric data (e.g., fingerprints, photos) from immigration encounters, which could theoretically be linked to broader verification efforts.

  • Some fear future integration of biometrics into E-Verify, such as facial recognition or photo matching, as seen in pilot programs like the U.S. Customs and Border Protection’s biometric entry-exit systems.

• Privacy Laws in Sanctuary States: States like California, Illinois, and Washington have robust biometric privacy laws:

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  • Illinois Biometric Information Privacy Act (BIPA, 2008): Requires consent before collecting biometric data, limits its use to the stated purpose, mandates secure storage, and allows private lawsuits for violations. It’s the most stringent in the U.S.

  • California Consumer Privacy Act (CCPA, 2018, amended by CPRA): Classifies biometric data as “sensitive personal information,” requiring notice, consent, and the right to opt out of its sale or sharing.

  • Washington Biometric Law (2017): Prohibits commercial use of biometrics without notice and consent, though enforcement is limited to the state attorney general.

• Argument for Protection: Sanctuary states could argue that expanding E-Verify to include biometrics (or linking it to biometric databases) risks privacy violations, especially for vulnerable immigrant populations. They might contend:

  
  

  • Lack of Consent: Forcing workers to submit biometrics for employment verification without clear, voluntary consent violates state privacy laws.

  • Data Misuse: Biometric data, once collected, could be shared with federal immigration authorities, undermining sanctuary policies and exposing undocumented workers to deportation.

  • Security Risks: Biometric databases are hacking targets, and a breach of unchangeable data (unlike a Social Security number) leaves individuals permanently vulnerable to identity theft or surveillance.

    
    

4. How Sanctuary States Navigate E-Verify

Sanctuary states don’t typically “get around” E-Verify using biometric data protection as a primary argument. Instead:

• Policy Resistance: They resist mandatory E-Verify laws through legislation or executive action, citing economic burdens, discrimination against workers, or local autonomy. For example:

  
  

  • California: Does not mandate E-Verify for private employers and limits public agencies’ use, aligning with sanctuary goals to protect immigrants from federal enforcement.

    
    

  • Illinois: A sanctuary state, it complies with federal E-Verify requirements for certain employers but has BIPA to tightly regulate biometric data, indirectly limiting how such data might be used in employment contexts.

    
    

• Biometric Concerns as Support: While not the main strategy, some sanctuary states leverage biometric privacy laws to caution against E-Verify expansion. They might argue that any move to incorporate biometrics into E-Verify would:

  
  

  • Conflict with state laws requiring notice, consent, and limited retention.

  • Heighten risks for immigrants, as biometric data could be cross-referenced with DHS or ICE databases, circumventing sanctuary protections.

    
    

• Practical Limits: Sanctuary states can’t block federal E-Verify mandates (due to federal preemption), but they can refuse to compel local businesses or agencies to participate beyond federal requirements, framing this as a worker protection measure rather than a biometric issue alone.

  
  

5. Key Considerations

• No Direct Link: There’s no clear evidence that sanctuary states systematically use biometric data protection laws to dodge E-Verify. Their focus is more on limiting cooperation with ICE and protecting workers from deportation or discrimination.

• Future Tensions: If E-Verify evolves to include biometrics (e.g., photo matching or facial recognition), sanctuary states might lean harder on biometric privacy laws to challenge implementation, citing consent, security, and misuse concerns.

• Legal Limits: Federal law can preempt state efforts to block E-Verify, but states can still regulate how private entities collect and handle biometrics, indirectly influencing employment verification practices.

Sanctuary states don’t directly bypass E-Verify using biometric data protection arguments. Instead, they limit mandatory E-Verify use through policies protecting immigrant workers and local control. Biometric privacy laws, like those in Illinois and California, play a supporting role by raising concerns about consent, data security, and potential misuse if E-Verify were to incorporate biometrics. This reflects a broader tension between federal immigration enforcement and state-level privacy and sanctuary priorities. For specific policies, check state laws (e.g., California’s AB 450, Illinois’ BIPA) or federal E-Verify guidelines at www.e-verify.gov.

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