U.S. Immigration and Customs Enforcement and the FBI have been using facial recognition software to sift through Department of Motor Vehicle databases to track down undocumented immigrants in some states.
In New York state, however, a new law that allows the immigrants to apply for driver’s licenses has safeguards against such searches.
Researchers at Georgetown University Law Center obtained documents related to the searches using the technology, which The Washington Post reported on this past weekend.
States like Utah, Vermont, and Washington have seen cases in which the technology was used to track down undocumented immigrants with the intent to deport them.
But New York state’s Green Light Law, or the Driver's License Access and Privacy Act, was designed to prevent federal agencies from accessing personal information through the databases. Gov. Andrew Cuomo had voiced concern about that possibility before signing the legislation.
"We have to write a law that does not have an unintended consequence,” he told Albany public radio station WAMC in an interview before ultimately signing the legislation.
The law takes effect Dec. 16.
A coalition with the Worker Justice Center of New York assisted with drafting the Green Light Law with protective measures in place. The center’s Sara Curtis said that instances of ICE accessing undocumented immigrants’ personal information in other states had informed how the New York bill was written.
“Because we were aware of this, that was why our coalition worked very closely with the bill sponsor to craft legislation that would guard against any such abuses by ICE,” Curtis said. “We were able to learn from the previous challenges that the other states have faced that our legislation expressly prohibits the DMV from disclosing photos without a lawful court order, judicial order, or subpoena.”
Iman Abid, director of the New York Civil Liberties Union’s Genesee Valley Chapter, said that the NYCLU is reviewing the law to determine if the safeguards are being implemented.
“It’s making sure information is not being duplicated or stored elsewhere and ensuring that these relationships don’t exist between the DMV and ICE … that ICE doesn’t necessarily have direct access to information being stored.”
Whether those protections will be enough remains to be seen. So far, DMV spokesperson Lisa Koumjian said the department has denied any attempts by the FBI to access its entire photo database, adding that the DMV “does not permit any local, state or federal police department or government agency, including ICE, to access its photo database for facial recognition purposes.”
ICE officials issued a statement to NPR refusing to comment on “investigative techniques, tactics or tools," but saying that the agency has the ability to collaborate with other local, federal and international agencies "to obtain information that may assist in case completion and prosecution efforts."
While the Green Light Law was designed to prevent possible surveillance of undocumented New York state residents, Curtis and Abid said that the use of facial recognition software to target individuals is concerning regardless of citizenship or resident status.
“One of the criticisms of it is that the algorithms are likely to misidentify people of color and especially women of color. So I think that what ICE is doing should be a concern for everyone, not just the undocumented community,” Curtis said.
Congress has not approved the practice, and individuals are not aware their information is being accessed, Alvaro Bedoya, the founding director of Georgetown Law's Center on Privacy and Technology, told NPR.
“It raises alarms when we know that there is information being shared about us without our consent,” Abid said.
Reporter's Note: An earlier version of this story included California as one of the states where facial recognition software was used. California DMV spokesperson Marty Greenstein clarified that the case in California was not one in which the technology was used, and provided the following statement:
"The California DMV does not use facial recognition technology, nor does it engage with law enforcement for the use of facial recognition. The DMV takes the protection of personal information for all driver license holders very seriously. DMV records available to law enforcement entities do not indicate whether a driver license was issued under AB 60 nor do they include any of the identification documents used to obtain a driver license."