Delaware’s Department of Motor Vehicles is using facial recognition technology to sift through its driver’s license database and assist with federal investigations.
Delaware Public Media’s Nick Ciolino explains how the process works and some of the concerns raised by it.
A memorandum of understanding between Delaware’s DMV and the FBI setting the parameters for FBI facial recognition requests was signed by the state in the spring of 2017.
It allows the FBI to send photographs of suspects to approved DMV officials on a secure email server. The DMV then compares the photos against the state’s database of driver’s license photos using facial recognition technology to come up with a list of likely matches to share back to the FBI. The FBI can then use that information to further its investigation.
In emails obtained by Delaware Public Media, the FBI made 77 of these requests during a three-month period earlier this year.
Delaware is not alone in forging this type of agreement. Documents produced for a U.S. House Oversight and Government Reform Committee hearing on law enforcement’s use of facial recognition last spring show 16 other states have similar agreements with federal law enforcement.
Anita Allen is a privacy law expert. She works as Vice Provost for Faculty and as a Professor of Law at the University of Pennsylvania. She says these agreements violate fair information practice principles and have grave implications for privacy.
“Pretty much you’re saying, ‘We’re going to start sharing this information, and public, you have nothing to say about it. There’s no reasonable way for you to get out of it. You just have to go along with it,’” said Allen.
Delaware Department of Transportation (DelDOT) officials point out Delaware Code says a person’s driver’s license is not releasable without the expressed written consent of that person, but there are some exceptions. One such exception being a request by any government agency, including law enforcement.
DelDOT, in a statement, adds it only allows law enforcement requests for active criminal investigations and will not entertain phishing requests for customer information without a court order.
Allen argues the net result is that applying for a state license in Delaware is in effect permitting one’s personal data to go to any state or federal agency without notification or permission for any government purpose.
“Arguably, it’s always a mistake, it’s always wrong to shift gears, to change purposes on why you’re collecting data—especially without the consent and notification of the record subject,” she said. “So if you’re going to start to collect driver’s license information that is also going to be used for these other purposes you need to immediately notify the public and give them the opportunity to perhaps decline to participate in your driver’s license system.”
ACLU of Delaware Legal Director Ryan Tack-Hooper agrees there should be a public conversation. He says the state should stop the practice of giving out driver’s license information to law enforcement for the use of facial recognition technology until state lawmakers discuss the matter.
Tack-Hooper says he’s concerned the technology is not always reliable. He points out the ACLU was able to positively match members of Congress with wanted criminals using the technology. He also says it’s dangerous to be giving away this kind of power without any oversight.
“A huge database like this is just ripe for abuse,” Tack-Hooper said. “We know that, for example, Baltimore Police used social media photos and a facial recognition database to identify protestors in the protest surrounding the death of Freddie Grey.”
The Delaware State Police has been using facial recognition technology in its investigations since 2016. And officials say it’s being used “in earnest” to help solve crimes caught on camera like shoplifting.
Captain Benjamin Parsons is the Director of the Delaware State Police State Bureau of Identification. He says there is no arrangement between state police and the DMV for use of driver’s license photos, but he adds being able to use the technology to run photographs against a database of arrest mugshots has proven to be a useful tool.
“The Delaware State Police, we use facial recognition technology to protect our citizens and catch criminals that prey on innocent persons,” said Parsons. “That’s why we use the technology.”
Parsons says state police is now able to tag vehicles or persons of interest in one video and find where else the image comes up in other public or private security videos, but not in a live stream.
“It helps investigators save time by using computer technology and facial recognition technology to be able to find where that image would pop up in all kinds of different videos that may be submitted as a part of an investigation,” he said.
Parsons stresses Delaware State Police does not use facial recognition technology to make a positive identification of a suspect but to create an investigative lead. The same language is in the FBI memorandum of understanding with Delaware’s DMV.
But Delaware’s ACLU is still calling for a moratorium on the state’s practice of submitting Delaware driver’s license data to federal law enforcement for the use of facial recognition technology.
“We’re sort of out on our skis on this and we need to slow it down and figure out how to use this technology in a way that minimizes the downside before we cede all this power,” said Tack-Hooper. “So we call on Delaware’s General Assembly to step in and stop this until we can have a public conversation and put into place standards and regulations to ensure there are checks and balances in place that make sure people’s rights are protected.”
Gov. John Carney’s Office declined to comment on the ACLU’s call for a moratorium—referring requests to DelDOT, which would not go beyond its statement showing the practice of submitting driver’s license information to law enforcement is within the legal limits of Delaware code.