Immigration and Customs Enforcement officials have used facial recognition software to search tens of millions of driver’s license photos in multiple states, according to newly disclosed documents.

The documents, first reported on Sunday by the Washington Post, show ICE officials have in recent years requested facial recognition searches of driver’s license databases in multiple states. As the New York Times noted Monday, that includes at least three states — Utah, Vermont, and Washington — that offer licenses to undocumented immigrants, though it’s unclear whether officials in Washington ultimately complied. Officials in Utah and Vermont did.

What does ICE have access to?

The documents obtained by Georgetown Law’s Center on Privacy and Technology show ICE can request facial recognition scans of states’ driver’s license databases.

From the Washington Post story:

The records, which include thousands of emails and official documents from federal agencies, as well as Utah, Vermont and Washington state, show how easy it is for a federal investigator to tap into an individual state DMV’s database. While some of the driver photo searches were made on the strength of federal subpoenas or court orders, many requests for searches involved nothing more than an email to a DMV official with the target’s “probe photo” attached. The official would then search the driver’s license database and provide details of any possible matches.
The search capability was offered not just to help identify criminal suspects, but also to detect possible witnesses, victims, bodies, and innocent bystanders and other people not charged with crimes.

Who can request these searches?

While the documents reveal the first known instance of ICE using facial recognition to search driver’s licenses, for several years the FBI has been making such requests.

According to a U.S. Government Accountability Office report last month, the FBI since August 2011 has had the ability to search or request searches of databases from multiple states. As of May 2019, that included 21 states and the District of Columbia, and the FBI was in negotiations with several others.

The FBI has access to more than 640 million photos of faces. From August 2011 through April 2019, more than 390,000 of these facial recognition searches were conducted by the FBI or at its request.

Why does this matter for undocumented immigrants?

In states where undocumented immigrants can obtain driver’s licenses, those drivers are not told that ICE will be able to search for their photos; the consent-less searches are a sprawling dragnet more than a targeted tool, said Alvaro M. Bedoya, founding director of the Center on Privacy and Technology.

“This is a huge betrayal of trust,” he said. “It’s a bait and switch.”

The news of ICE’s access to driver’s license photos will only further erode undocumented immigrants’ trust in the government, Bedoya said.

Do Pennsylvania and New Jersey participate?

The answer in New Jersey is simple: No.

As for Pennsylvania, the FBI already had access to driver’s license photos and other information collected by the state. But it’s unclear whether ICE does. Bedoya said the Georgetown center’s records request was partially denied, including the portion that would show which external agencies have requested searches. So it’s possible — and the infrastructure already exists, given the FBI searches — but it is not known for sure.

A PennDot spokesperson said Monday afternoon that a variety of federal agencies have access to its data. That includes the U.S. Department of Homeland Security, ICE’s parent agency.

A spokesperson for PennDot had not responded Monday afternoon to a request for information, including the number of searches conducted, whether drivers can opt out, what the process is for requesting a facial recognition search, what state oversight exists, and what information is provided if matches are returned.

Do Pennsylvania and New Jersey allow undocumented immigrants to obtain driver’s licenses?

Not currently, but in New Jersey particularly, driver’s licenses have been a major issue for immigrant-rights activists.

Sara Cullinane, director of Make the Road New Jersey, called expanding access to driver’s licenses “the number-one priority for immigrant rights groups across the state.”

So Monday’s news about ICE won’t scare off activists, she said.

The state Motor Vehicle Commission and the Legislature “have been working on robust privacy protections that would prohibit this type of sharing with ICE,” she said.

Similarly, two leaders in the Driving Pennsylvania Forward coalition said privacy has been a major issue in recent years as concerns arose about ICE’s access to state driver’s license databases.

“We’re aware of what’s been going on in other states, and for that reason we’re fighting for privacy and protection of people’s information when this legislation passes,” said Desi Burnette, statewide coordinator with Movement of Immigrant Leaders in Pennsylvania.

What are activists proposing?

The Pennsylvania coalition is pushing for legislation that would allow undocumented immigrants to obtain the same standard driver’s licenses as everyone else — some states allow undocumented immigrants to obtain a separate type of license — and that would also automatically shield all driver’s license information as private.

They propose allowing law enforcement access to the PennDot data only with a warrant.

The group is planning to help introduce legislation soon, Burnette said, and in the last few months has focused particularly on privacy protections.

The news about ICE “makes us aware that we need to be thinking about how we make sure whatever bills we pass, people’s information is protected,” said Blanca Pacheco, co-director of the New Sanctuary Movement of Philadelphia.

“It’s no surprise this is being brought to light right now,” Pacheco said. “After New York and Oregon approved legislation [allowing undocumented immigrants to get driver’s licenses], it seems like a tactic to push back and create fear to prevent similar legislation.”