Two state lawmakers say they have concerns about the FBI and Immigration and Customs Enforcement officials mining state driver’s license data to create a facial recognition database.
Officials in Maryland have been circumspect about discussing whether either agency has been accessing the data and photos of more than 5 million Maryland residents who have driver’s licenses and state identification cards issued by the Maryland Motor Vehicle Administration. But a series of stories in The Washington Post raises questions about the reach of the FBI and ICE as well as privacy concerns in an age of ever-expanding technology and data collection.
Two Democratic state lawmakers, Dels. Joseline Peña-Melnyk, Prince George’s and Anne Arundel, and Charles Sydnor, Baltimore County, said they plan on sponsoring legislation in the 2020 session that would make it more difficult if not prohibit the state from turning over driver’s license photos and other data.
Peña-Melnyk said she has already requested legislation that would prevent the use of driver’s license data for civil immigration enforcement. The bill could be similar to one proposed in 2018 by Del. Dana Stein, D-Baltimore County and vice chairman of the House Environment and Transportation Committee.
Peña-Melnyk said she plans on discussing the legislation with Stein and would ask him to take over the bill.
“The bottom line is that we need to address this in the 2020 session,” said Peña-Melnyk. “We need to have a real discussion about what is right and what is humane.”
Stein’s bill, which died in committee, would have prohibited the state from turning over driver’s license data for civil immigration enforcement except in cases where there is a warrant or subpoena from a state or federal judge.
State transportation officials testified in 2018 before Stein’s committee that law enforcement does not directly access nor request data from the MVA. Instead, the state agency shares its data with the Department of Public Safety and Correctional Services and with a state clearinghouse used by local, state and federal law enforcement agencies.
A representative of the Maryland State Police testified that the agency had concerns about costs of finding and implementing a technology solution to comply with the legislation.
Neither the Department of Transportation nor the state police took a position on the bill at the time.
Sydnor sponsored a bill two years ago that would have limited the use of facial recognition databases in Maryland. The bill, which died in committee, would have also required the Maryland Motor Vehicle Administration to publicly post in offices and online how law enforcement accesses photos for facial recognition purposes. Agencies would have still be able to use facial recognition for short periods of time under a court order.
Concerns with accuracy
Sydnor said that while the use of facial recognition is growing, it remains unreliable in identifying minorities.
“They’re misidentifying folks, which is why law enforcement has to take additional steps, because it is not as accurate as people want to believe,” said Sydnor.
The Baltimore County delegate said he is planning to bring his 2017 legislation back when the legislature reconvenes in January.
Both Sydnor and Peña-Melnyk said they grew concerned about license data in Maryland following an ongoing series of stories in The Post detailing how the FBI and ICE were building facial recognition databases. Photos in the databases, which were not specifically authorized by federal law, include undocumented immigrants who were encouraged to apply for licenses as well as millions of people who have never been convicted of a crime.
Some of the states involved include those that have laws allowing undocumented immigrants to apply for licenses and state issued identification cards. That data provides essentially a registry of undocumented immigrants along with photos.
Peña-Melnyk said Maryland’s 2013 law allowing undocumented immigrants to obtain driver’s licenses was about public safety. It was never intended, she said, to inadvertently create a registry that could be used by immigration enforcement to scoop up people living in Maryland.
“I’m concerned people will not seek a license if they know it’s a path for ICE to take them away,” said Peña-Melnyk. “For us to allow this practice, it will definitely make people hesitant about getting a license. Immigration laws are federal laws, and we’re not supposed to use state resources to enforce federal immigration laws.”
ICE officials mum
It is not known how ICE or other agencies use the data. A written request for an interview with an ICE spokesperson went without response. An agency spokesman told The Post that it would not comment on the use of the data or how facial recognition technology might be used as an investigative tool.
The use of facial-recognition by state, federal and local law enforcement agencies has grown over the past decade as an FBI pilot project evolved into a full-scale program, according to The Associated Press.
Twenty-one states and Washington let the FBI access their drivers’ license and identification photos, according to a Government Accountability Office report published last month. The report said the FBI currently has access to 640 million photos — including for U.S. visa applicants — with more than 390,000 photos searched for matches since 2011, the year the agency augmented its fingerprint database with facial analysis.
Maryland, which was not specifically mentioned in The Post story, is one of 13 states that issue driver’s licenses to undocumented immigrants. The District of Columbia also provides licenses to undocumented immigrants.
The 2013 Maryland law allows immigrants who do not have valid United States citizenship or immigration documentation to apply for a driver’s license or identification card.
It is not immediately known how many of those licenses and identification cards were issued to undocumented immigrants.
Adrienne Diaczok, a spokeswoman for the Maryland Vehicle Administration, could not confirm any specific request from federal immigration or law enforcement authorities. The database, which contains photos and information for more than 5 million people, is routinely used by federal, state and local law enforcement.
“Under state law, local, state and federal law enforcement agencies have access to Maryland driver’s license or identification card holder information for law enforcement purposes,” Diaczok said. “Local, state and federal law enforcement agencies have access to driver’s license photos, as well as mug shot photos from law enforcement agencies throughout the state, through the Maryland Image Repository System, which is maintained by the state Department of Public Safety and Correctional Services.”
A post on the MVA website discloses that the agency provides the information to law enforcement agencies.
‘Cut and dry here’
Michael Ricci, a spokesman for Republican Gov. Larry Hogan said the Maryland Public Information Act requires the agency to release information to federal law enforcement agencies and the courts.
“Pretty cut and dry here, I’d say,” said Ricci, referring to the law.
Ricci said release of the information would require a written request under the law.
Hogan has not been shy in calling out the legislature or federal or state laws with which he disagrees. Ricci declined to answer questions about whether the governor agreed with the statute he cited or if the governor would still allow the release of driver’s license data and photos if it were discretionary rather than required.
“Not gonna get into hypotheticals,” said Ricci. “The administration is required to execute the law.”
Sydnor said that while there are legitimate law enforcement uses, the exponential growth of technology and its applications by private and government entities raises a growing set of concerns about privacy. Determining the limits of how government agencies share the data they collect is an unresolved question.
“I wish I had the answer to that question,” said Sydnor. “We’ve spent so much time thinking about privacy concerns related to the data collected by private entities. What information can be shared between (government) departments? I don’t think there’s anything in place to prevent it.”