ICE used facial recognition to mine state drivers’ license databases in at least 3 states that offer licenses to undocumented immigrants

Georgetown Law ‘s Center on Privacy and Technology researchers have learned through FOIA requests that thousands of facial-recognition requests, internal documents and emails over the past five years have been accessed by ICE and other law enforcement officials, turning state departments of motor vehicles databases into “the bedrock of an unprecedented surveillance infrastructure” and a gold mine for immigration enforcement actions.

While FBI and the police have long had access to fingerprints, DNA and other “biometric data” taken from criminal suspects, the DMV records contain the photos of a vast majority of a state’s residents. Most of these state residents have never been charged with a crime. The undocumented immigrants may be unwittingly revealing their immigration status since the REAL ID Act requires that their state licenses be marked as ineligible for public benefits.

The information about citizenship status may be part of the reason for ICE’s searches. In at least three states that offer driver’s licenses to undocumented immigrants, ICE officials have requested to comb through state repositories of license photos. At least two of those states, Utah and Vermont, complied, searching their photos for matches. In Washington, agents authorized administrative subpoenas of the Department of Licensing to conduct a facial recognition scan of all photos of license applicants, though it was unclear whether the state carried out the searches.

More than a dozen states, including New York, as well as the District of Columbia, allow undocumented immigrants to drive legally with full licenses or driving privilege cards, as long as they submit proof of in-state residency and pass the states’ driving-proficiency tests. Lawmakers in Florida, Texas and other states have introduced bills this year that would extend driving privileges to undocumented immigrants. Some of those states already allow the FBI to scan driver’s license photos, while others, such as Florida and New York, are negotiating with the FBI over access, according to the GAO. (The National Conference on State Legislatures has a list of states offering licenses to immigrants, as of 6/20/2019.)

Neither Congress nor state legislatures have authorized the development of such a system. Indeed, Congress is commencing public hearings into the practice. Governors in two of the three states subject to ICE requests, Vermont and Washington, are now or have recently taking action to stop the practice. In Vermont, the Vermont Agency of Transportation says that the use of facial recognition technology by the agency was discontinued in 2017 “at the direction of current governor Phil Scott as soon as it was brought to his attention.” A lawsuit has been filed by an activist group, Vermont Public Radio reported. The Seattle Times reported last year that Washington State’s Department of Licensing turned over undocumented immigrants’ driver’s license applications to ICE officials, a practice its governor, Jay Inslee, pledged to stop. A Washington state law passed in 2012 stipulated that the department could use a facial recognition matching system for driver’s licenses only when authorized by a court order, something ICE did not provide. In addition, cities such as San Francisco and Somerville, Mass., have banned their police and public agencies from using facial-recognition software, citing concerns about governmental overreach and a breach of public trust.

In the Washington Post article that first reported on this story, Georgetown privacy expert Harrison Rudolph said the records painted a new picture of a practice that should be shut down. “States have never passed laws authorizing ICE to dive into driver’s license databases using facial recognition to look for folks.” He continued: “These states have never told undocumented people that when they apply for a driver’s license they are also turning over their face to ICE. That is a huge bait and switch.” His associate Clare Garvie said, “The state has told [undocumented immigrants], has encouraged them, to submit that information. To me, it’s an insane breach of trust to then turn around and allow ICE access to that.” 

An ICE spokesman declined to answer questions about how the agency uses facial-recognition searches, saying its “investigative techniques are generally considered law-enforcement sensitive.”

MHC