ID Politics: Would Malliotakis hand over immigrants' data to the White House?

The last question at the Oct. 10 New York City mayoral debate came after an hour and a half of potshots, prattling and audience antics, and it concerned the benefit-packed city identification card held by 1 in 8 city residents: “Can you commit to not sharing the IDNYC database with federal authorities when they come asking?”

“Absolutely,” New York City Mayor Bill de Blasio said to whoops and screams. “(Nicole) Malliotakis has sued the city of New York to try and get the release of the background information on over a million people to give it to the Trump administration.”

Malliotakis shook her head, scribbling, murmuring, “That’s not true.”

“We are fighting to stop that,” the mayor said. “We believe, and the NYPD believes, that those records should be sacrosanct. Under city law, they were supposed to be destroyed.”

Malliotakis, defiant, rebuffed the accusation and touted her immigrant upbringing, but fumbled for a clear answer to the question. Would she release the records? “Yes, yes, well, yes,” she said, to booing, before changing tack. “No. My lawsuit is not about turning records over.”

From there, the room descended into cacophony.

RELATED: Can Nicole Malliotakis land any punches?

But for all the noise that night, devoted viewers suffering through the episode likely learned one key detail about IDNYC. Through the municipal identification program, the city has amassed a trove of highly sensitive personal information belonging to more than a million city dwellers – and it’s in limbo. Its fate hinges on a court decision that has the potential to turn that politically charged legal battle between mayoral contenders into a battle between the city and the federal government.

The creation of IDNYC is a political parable of unintended consequences.

In 2014, the progressive mayor and city legislators crafted a program to enable undocumented immigrants to open bank accounts, sign leases and have library cards – to truly feel they belong in their chosen city.

Three years later, those same city leaders are dreading the possibility that their project to shield vulnerable residents could be used by the White House as a deportation directory.

In an undisclosed location, the lights on a bank of encrypted computer servers blink. Its fans whir. Inside sits a tightly controlled trove of personal data.

A multitude of digital documents are stored there, many providing the kinds of numbers, stamps and seals that prove we are who we say we are. Birth certificates, Social Security cards, driver’s licenses and passports were scanned to support the applications of IDNYC cardholders.

A tally of the data, subpoenaed by Malliotakis’ lawsuit, shows that in the database there are 346,619 driver’s licenses and 467,283 passports – U.S. and foreign, current and expired, machine readable and non-machine readable – belonging to a broad cross section of New York City residents, from our famous mayor to otherwise unknown undocumented workers.

RELATED: How much personal information did the city collect?

While open to all residents, the program was always intended to provide identification to the largest concentration of immigrants living in the country without legal permission. The metropolitan area is home to an estimated 1.15 million undocumented immigrants, 525,000 of whom live in the city, according to a Pew Research Center study.

“This is a program that has sought to address a number of obstacles that New Yorkers have had,” said Bitta Mostofi, acting commissioner of the Mayor’s Office of Immigrant Affairs. “Not just in receiving government identification, but simply their ability to navigate basics – picking up your kids from school, opening a bank account, interacting with law enforcement.

“At the heart of this program is that all of New York City’s residents can do those very things with dignity – without fear, without concern,” Mostofi said, noting that domestic violence survivors and the homeless as well as undocumented immigrants are helped by the card. “The importance is obviously vulnerable populations who have the largest obstacles to getting a government-issued ID.”

Source: IDNYC program evaluation by Westat for NYC  (click here to view large)

New York City has long identified itself as a city of immigrants. The data bears that out: 37.5 percent of city residents are foreign-born, according to the U.S. Census Bureau. So, having a local ID card that embraces all residents is hardly surprising, although New York City was not the first.

In the early 2000s, undocumented residents of New Haven, Connecticut, were known as “walking ATMs” – police found they were targeted for robbery because they carried large quantities of cash or stowed it at home since they did not have the documentation to open a bank account. A municipal ID card, accepted by local banks, was a solution that solved that problem and helped integrate a growing number of otherwise unaccounted for immigrants.

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City leaders across the country saw an opportunity in New Haven’s example. Major metropolitan areas hold a disproportionate share of the country’s undocumented immigrant population. The Pew Research Center found that 60 percent of the estimated 11.1 million undocumented residents in the United States live in just 20 metropolitan areas. These cities could not only help to alleviate crime, but also shield vulnerable immigrants from what many Democratic politicians saw as outdated and draconian immigration policies.

For de Blasio, a municipal identification card played into his signature tagline.

“The state of our city, as we find it today, is a tale of two cities – with an inequality gap that fundamentally threatens our future,” he said in his January 2014 State of the City address.

“To all of my fellow New Yorkers who are undocumented, I say: New York City is your home too, and we will not force any of our residents to live their lives in the shadows,” de Blasio said as he announced the IDNYC program.

New York City Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito launch the IDNYC campaign at Queens library in 2015. (William Alatriste/For the New York City Council)

The support from the New York City Police Department was a coup for the mayor at a time when some were still smarting from his searing criticism of stop-and-frisk policing. When Assembly members Ron Castorina Jr. and Nicole Malliotakis filed a lawsuit in New York State Supreme Court late last year attacking the ID program with fraud and national security concerns, John Miller, the NYPD’s deputy commissioner of intelligence and counterterrorism, came to its defense in court.

“These legions of people exist in some ways with no record of their existence, where they don’t show up anywhere,” Miller testified, talking about the city’s undocumented immigrants. “It causes people to not come forward to accept services, not contact the police, in some cases, not report crimes because they cannot answer the first question, which is, ‘Who are you?’”

“The more people out there that we can document the existence of and be certain about the identity of, the better off I am,” Miller said.

Miller noted that the initial legislation for IDNYC was a compromise between New York City Council members who wanted to immediately destroy the data and police who wanted to retain it in case it was needed to pursue a criminal who had an IDNYC card. The parties landed on a two-year retention period, ending December 2016, when the city could decide to destroy the records.

But another consideration for not keeping the scanned background documents was “inherent identity theft risks on a huge scale,” Miller told the court.

“We have learned from recent elections that anything that lives on a server can and will be breached at some point, somewhere, by somebody, as the criminal capabilities of hackers develop,” Miller said. “If this system were compromised or breached, it could lead to a massive identity fraud opportunity where people not only had all the requisite data, say, from the application, but also the actual building blocks in terms of driver’s license, passports, foreign ID, what have you, to recreate people’s identity.”

Later that day, on the stand, Castorina mocked Miller’s testimony as “political mumble jumble” and wryly suggested that perhaps the other departments should delete their data too. “Maybe we should get rid of all the documentation that’s maintained by any agency in city of New York. That’s hogwash,” Castorina testified.

Castorina said his criticisms boil down to national security. “The fact is and remains that somebody who wants to engage in terrorism can utilize this card to obtain identification and then engage in the finance of terror; that’s why this is so important,” he testified.

That’s because the identity document requirements to get the card are simply too weak, co-plaintiff Malliotakis told City & State.

“I don’t understand. Why would you use expired foreign passports that are not machine readable? Why don’t you say that they have to be current? It doesn’t make sense,” Malliotakis said. “I think you’re putting people at risk by allowing a program that allows this little scrutiny.”

After the publication of this story, the Mayor’s Office of Immigrant Affairs responded that Malliotakis' claim is incorrect. While the IDNYC program accepts expired foreign passports or non-machine readable foreign passports, it does not accept foreign passports that are both expired and non-machine readable.

RELATED: Malliotakis, Castorina: It's not about immigration

The New York City Human Resources Administration, which administers the program, reported to the City Council in late September that 142 cases of fraud have been detected in IDNYC applications and that every one of these applicants had been denied. Miller said during his testimony that the criminal implications of the pilot program were “de minimis.”

Merits of the case aside, it’s difficult to ignore how useful these talking points could be to a Republican looking to burnish her conservative credentials with Staten Islanders, but Malliotakis chalks it up to chance.

“It’s not my intention to turn over records at all. But if someone is committing a crime and we need those records to turn over to law enforcement, then that’s a different story.”
– Assemblywoman Nicole Malliotakis

“It’s coincidental, in the sense that I never intended to run for mayor,” Malliotakis said with a laugh. “It certainly is a part of the reason why I’m running. I believe the city is being totally mismanaged.”

“For me, it’s a public safety issue,” Malliotakis said, adding that de Blasio’s recurring charge that the lawsuit is designed to turn over records to the Trump administration is untrue.

“It’s not my intention to turn over records at all,” she said. “But if someone is committing a crime and we need those records to turn over to law enforcement, then that’s a different story.”

“The mayor really outright lied to the people of New York and he’s disparaging the purpose of my lawsuit,” she added, noting that immigration is not the focus of her lawsuit. “I think it’s just political points he’s trying to score by saying that.”

The mayor’s campaign did not respond to a request for an explanation of his comments during the debate.

Assemblywoman Nicole Malliotakis speaks to a police officer during the Dominican Day Parade in Manhattan in August. (Jeff Coltin) 

The lawsuit itself was filed after after a flurry of freedom of information requests by Castorina and Malliotakis in November 2016 to obtain the data were denied, well after Malliotakis voiced her early complaints about the city’s IDNYC record destruction clause in February 2015. The rationale for the requests was that she and Castorina, in their role as state lawmakers, needed to review the background documents to see if they were adequate forms of identification. The city denied their requests and less than a month after the presidential election, on Dec. 5, 2016, the two Republican Assembly members filed their lawsuit.

On Dec. 7, the city issued an executive order to immediately stop retaining all background documents from future IDNYC applicants.

On Dec. 21, a judge issued a temporary restraining order that forced the city to preserve all existing applicant data.

Despite an April 7 ruling that permitted the destruction of the records, Malliotakis and Castorina immediately filed a notice of appeal and succeeded in preserving the data while they filed a second lawsuit on April 13. That lawsuit is ongoing.

This scenario was not unforeseen.

As City Council members cast their votes on IDNYC in summer 2014, Alan Maisel asked to explain his vote.

“I don’t often speak,” Maisel said. “But I did want to speak about this identification bill.” It was a good bill he said, but it had one defect.

“Right now, we have an administration in Washington that’s friendly to immigration. What happens two years from now or six years from now when we have an administration that is not friendly to immigrants?” he asked. “We are basically presenting and preparing a list of undocumented workers to be presented to whatever authority there is … and say, ‘Look, we know you’re undocumented. We are deporting you.’”

But the City Council members felt they had addressed that issue by embedding a political kill switch, allowing the city to delete the background documents on Dec. 31, 2016, just in case the political tide turned in Washington.

“That did not satisfy me,” City Councilman Mark Treyger told City & State in a recent interview. He recalled asking, “If a new president gets elected and the message is that we want you to hold onto that data and if the city would try to destroy that data – are we obstructing justice? And are we creating new legal battles between the city and the federal government?” And caught up in all of this, he said, are city residents.

“If they had just created the program without the retention of information, then we could have avoided a lot of the grief and headaches that we are experiencing now,” Treyger said.

The IDNYC bill passed 43-3, with Maisel and Treyger abstaining.

“What happens two years from now or six years from now when we have an administration that is not friendly to immigrants?”

– New York City Councilman Alan Maisel, in 2014

Presently, the IDNYC database and its background documents are protected by executive orders explicitly limiting who can access them and when information can be shared.

Law enforcement agents seeking documents on individuals for a criminal investigation, whether local or federal, are instructed to get a judicial warrant or subpoena. Only a few requests have succeeded in squeezing data from the IDNYC archive.

Since the program began in January 2015, the city has given law enforcement agents personal IDNYC data for 13 individuals after receiving judicial subpoenas, according to an analysis of quarterly reports sent to the City Council.

The city has not received requests for information from U.S. Immigration and Customs Enforcement, the mayor’s office said. If federal immigration agents did request data, they would be subject to a stringent review process.

“The city has the highest standard for the security of IDNYC cardholder information. Any request for information deemed improper by the city, including the ones lodged by Assembly members Castorina and Malliotakis, will be vigorously denied,” said Rosemary Boeglin, a spokeswoman for the Mayor’s Office of Immigrant Affairs. “The city has demonstrated its willingness to do whatever it takes – including going to court – to ensure cardholder information is kept confidential.”

While concerns surrounding the program from immigrant advocates frequently center on the possibility of many of the city’s undocumented immigrants being deported as a result, it’s unclear just how successful the city has been in enrolling undocumented immigrants in the first place because the city does not inquire about immigration status.

Notably, a city-commissioned survey of 70,000 IDNYC cardholders in 2016 found 57 percent of cardholders self-identified as immigrants – 20 percentage points higher than the share of foreign-born immigrants in New York City. Of those self-described immigrants, 36.3 percent said IDNYC is their only form of identification.

Source: NYC HRA

Given that 1,207,650 IDNYC applications had been processed through the end of September, according to city records, and assuming the cardholder survey results held true today, it’s possible that the city ID is the only form of identification for about a quarter million self-described immigrants – a more broadly defined group that may also include undocumented immigrants.

Regardless, the effort to provide undocumented New Yorkers with bank accounts appears to be stymied by a lack of participation from larger, risk-averse banks, despite guidance from federal and state regulators approving the use of IDNYC as an identifying document.

Currently 13 banks, largely regional banks and credit unions, are listed on the city’s website as accepting the card as a primary form of identification. At those banks, the city reports that more than 2,300 accounts have been opened using IDNYC as of the end of September, although officials believe the actual number is higher, as the numbers are voluntarily provided by the banks. Still, Amalgamated Bank, which has opened more bank accounts with IDNYC cardholders than any other New York City bank, has opened just 880 accounts with the card used as the primary form of identification.

Just a week away from the election, the polls show Malliotakis is unlikely to prevail with voters – de Blasio holds a 44-point lead, according to an Oct. 5 Quinnipiac University poll – although the Republican said her private polling shows she has a shot.

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Regardless, if Castorina and Malliotakis win in court, what might become of that data? She denies any plans to proactively share it with federal authorities, but the prospect of a conflicted Trump supporter holding the sensitive data of more than a million cardholders leaves some elected officials feeling nervous.

“I didn’t think we would get a lawsuit so quickly, frankly, and probably the city didn’t either, but you’re dealing with the lives of people,” Maisel said, adding that he wished the city had destroyed the data earlier. “As a concept, it’s a wonderful concept. It’s a great idea.” But ultimately, as he tells his constituents, he always had misgivings.

“If I was undocumented and I had half a brain, I wouldn’t sign on to the program,” Maisel said. “But, you know, I’m overly cautious.”

Clarification: While the IDNYC program accepts expired foreign passports or non-machine readable foreign passports, it does not accept foreign passports that are both expired and non-machine readable. A quote by Malliotakis suggested otherwise.