NYCLU, ACLU Sue New York State Department of Labor for Withholding Records on Automated Identity-Verification Tools

NEW YORK — Today, the New York Civil Liberties Union and the American Civil Liberties Union filed a lawsuit against the New York State Department of Labor (DOL) for not providing records regarding the agency’s use of automated tools for unemployment insurance identity verification, after having submitted a Freedom of Information Law (FOIL) request more than a year and 9 months ago.

During the height of the COVID-19 pandemic, at a time of staggering job loss, the DOL began requiring applicants accessing unemployment insurance benefits to verify their identities using ID.me, a private contractor that uses an error-prone, inaccessible, unreliable, and invasive automated facial recognition tool.

Additionally, unemployment insurance applicants erroneously denied verification by automated technology have faced significant difficulties reaching human operators, causing them to experience delays of weeks or even months in receiving the benefits they acutely need.

“Everyone should be able to access unemployment benefits when they need them, free from surveillance or unfair barriers,” said Terry Ding, staff attorney at the New York Civil Liberties Union. “Forcing New Yorkers to use error prone, racially-biased facial recognition software to receive benefits — without providing any public insight into how that data is being collected or used — gives the government broad power to exploit, manipulate, or misuse people’s personal data. New Yorkers deserve transparency and robust privacy protections, not opaque practices that put their sensitive personal information at risk.”

“The DOL’s use of ID.me raises enormous concerns around discrimination, privacy, and accessibility, particularly for the many people who are on the wrong side of the digital divide, who are going to be disproportionately Black, Latinx, Indigenous people and those with disabilities and/or rural households,” said Olga Akselrod, senior staff attorney at the American Civil Liberties Union. “People should never be required to undergo a facial recognition process or give up sensitive private information to a private company in order to access critical government services.”

There are well-documented problems with automated identity-verification tools like ID.me: error rates are markedly higher for people of color, women, and individuals in other marginalized groups; difficulty using the tools for some people with disabilities and people with unreliable internet or technology access; and privacy concerns with putting large amounts of personal information in the hands of private companies operating with minimal oversight.

The NYCLU and ACLU submitted a FOIL request to the DOL in August 2021 for records relating to the agency’s use of automated tools in unemployment insurance identity verification, including records about the accuracy, reliability, and accessibility of those tools. But almost two years later, the DOL still has not provided a substantive response or produced a single record. The DOL’s ongoing delay in producing records on a matter of public concern that affects many New Yorkers is a violation of the agency’s legal obligations.

Counsel from the NYCLU and ACLU on this case include Terry Ding, Olga Akselrod, and Molly Biklen.

You can find materials on the case here: https://www.nyclu.org/en/cases/nyclu-and-aclu-v-new-york-state-department-labor.