ICE has run facial-recognition searches on millions of Maryland drivers
The agency's unlimited access to drivers' photos has alarmed immigration and privacy activists, who fear it is being used to target immigrants who sought driver's licenses after 2013
By Drew Harwell and Erin Cox
Feb. 27, 2020
U.S. Immigration and Customs Enforcement officials have been permitted to run facial-recognition searches on millions of Maryland driver's license photos without first seeking state or court approval, state officials said -- access that goes far beyond what other states allow and that alarms immigration activists in a state that grants special driver's licenses to undocumented immigrants.
More than 275,000 such licenses have been issued statewide since 2013, when the state became the first on the East Coast to defy federal guidelines and allow undocumented immigrants to obtain a license without having to provide proof of legal status. The technology now under scrutiny could let an ICE official run a photograph of an unknown person through the system and see if any potentially undocumented immigrants are returned as a match.
"It's a betrayal of immigrants' trust for the [state] to turn around and let ICE run warrantless searches on their faces," said Harrison Rudolph, a senior associate at Georgetown University Law School's Center on Privacy and Technology. "It's a bait-and-switch. ... ICE is using biometric information in the shadows, without government notice or public approval, to hunt down the most vulnerable people."
A top Maryland law enforcement official told state lawmakers in November that ICE officials had logged nearly 100 sessions in the state's driver's license database since 2018, according to a previously unpublicized letter obtained by The Washington Post. Each session could have included multiple searches of the Maryland Image Repository System database, which includes the photos, names, addresses and other personal information of approximately 7 million drivers statewide.
The battle to grant driver's licenses to undocumented immigrants spanned more than a decade in Maryland and is viewed by immigrant rights advocates as a capstone victory. In 2013, Maryland lawmakers voted [1] to create the licenses despite federal laws requiring proof of immigration status on state-issued identification cards, following arguments from advocates that the change would boost road safety by requiring driver-safety tests and insurance coverage.
But immigrant rights groups now say ICE has used that legal protection to target undocumented immigrants who consented to offering their information and sat for a photograph.
"Having a license was something that was won and past, but now it's opened up this vulnerability," said Lydia Walther-Rodriguez, the Baltimore-area director for CASA, an immigration rights group. "After the victory occurred, there was a lot of trust that was given to the state. Now it's the state's responsibility to ensure that trust is not lost."
ICE has for years tapped the driver's license databases of states such as Utah, Vermont and Washington while attempting to match a photo to a person's identity, as The Post first reported [2] last year. But in those cases, ICE agents had to request a state official run the search. Maryland records show that ICE officials across the country can independently search without outside approval.
"They have a wide-open door to be able to search through anything in this database," said Maryland Sen. Clarence K. Lam (D-Howard), who spent years pressing the state officials to explain the extent of the program. "They've not been forthcoming in their willingness to [stop it] or coming up with solutions."
It was unclear Wednesday how this arrangement originated or when the ICE searches began in Maryland. Lam said he gleaned from meetings with agency officials that it started with a memorandum of understanding around 2012, raising the possibility that lawmakers who intended to champion the rights of undocumented immigrants created licenses for them that were readily searchable by federal immigration authorities. The driver's license data is recorded by the Maryland Motor Vehicle Administration and included in a broader database, alongside jail mug shots, that is maintained by the state agency that runs Maryland's prisons.
Kevin Combs, the chief information officer for Maryland's Department of Public Safety and Correctional Services who wrote the November letter, provided no further details in the letter about who was given access to the database, the reasons for the searches or who was identified. Republican Gov. Larry Hogan's office declined to offer more details on Wednesday after The Post obtained Combs's letter.
ICE spokeswoman Dani Bennett said that the agency would not discuss specific law enforcement tactics or techniques and that its investigative activities are in compliance with federal law. ICE's facial-recognition searches, she added, are not "routinely" used for civil immigration enforcement and are instead primarily used by special agents investigating child exploitation or cybercrime.
The searches, Rudolph said, could affect everyone, not just immigrants, because of the searches' potential for misidentification that could lead ICE officials to pursue the wrong person. Some facial-recognition algorithms were shown to be up to 100 times more likely to misidentify people if they were Asian or black, a federal study found last year. [3] The searches' accuracy is also highly dependent on database size and image quality.
"If you're a U.S. citizen and thinking ICE facial-recognition searches don't affect you, you're wrong," he added. "With face recognition, the question is not whether you are an immigrant, but whether an error-prone technology thinks you look like an immigrant."
Walther-Rodriguez, the Baltimore-area director for CASA, said her group grew suspicious after raids and detentions in recent months and questioned how the immigrants had been found. In many of the detentions, she said, immigrants had recently acquired state driver's licenses. One man detained three weeks ago in Rockville said he was told by the arresting officer that he was found through Maryland's MVA system.
The group now says ICE's open access to MVA photos and other data was a main reason for the detentions. Many immigrants, she said, pursued a driver's license because they thought it was the right thing to do as they drove to work or dropped off children at school and now feel panicked and deceived by how their data has been used.
The 2013 bill's sponsor, former state senator Victor R. Ramirez (D-Prince George's), heralded the change by saying at the time [4] that Maryland would no longer "drive people underground." Fifteen states issue such licenses. But the ICE searches, he said, threatened to deeply undermine the program by forcing a chilling effect on undocumented immigrants, who may seek instead to ignore the requirements for driver licensing, insurance and education.
"People are not going out and getting a driver's license if they feel like ICE is going to pay them a visit and come to their house," Ramirez said. "It goes in the face of why we passed it."
Maryland offers law enforcement broad access to driver data. But the Maryland governor's office and the General Assembly do not appear to have considered the specific issue of facial-recognition search, Rudolph said.
Del. Dana Stein (D-Baltimore County) said that when he introduced a bill in 2018 to outlaw data sharing with ICE, state officials said it was not possible at the time to distinguish between ICE searches and those of other federal law enforcement agencies.
The Maryland General Assembly scheduled hearings Thursday on two bills that would require ICE to get a warrant before it can scan Marylanders' photos. The Hogan administration said Wednesday it took no position on cutting off ICE access but warned lawmakers that the state currently had "no means by which to control or monitor the access" that the database granted to other federal agencies.
A similar but more sweeping New York law provoked retaliation from the Trump administration earlier this month -- and a warning that other states would also be punished for "sanctuary" policies that thwart federal immigration enforcement. The administration said it would kick out approximately 175,000 New Yorkers [5] from the Global Entry and Trusted Traveler Programs by the end of the year. It would also delay export of used vehicles, because the administration could not access car registration records.
The threat has loomed over the proposal to cut off ICE access in Maryland, home to one of the nation's top automotive ports, [6] the Port of Baltimore. But Stein said the law he and Lam co-sponsored is narrowly crafted to only affect ICE searches in hopes that it won't spark the same federal retribution.
"We don't want to do anything that impedes criminal law enforcement investigations," Stein said. "It's unfair for individuals who have been law-abiding -- even though they are technically undocumented -- who have built families and built businesses to be picked up and deported without any notice just because they got a driver's license. It's bad public policy."
Twenty states allow FBI agents to scan driver's license photographs, and the agency has run more than 390,000 facial-recognition searches of state DMV rolls and other local databases since 2011, the Government Accountability Office said [7] last year.
But Maryland, Rudolph said, appears to be the only state where ICE officials anywhere in the country can run a search as long as they have access to the National Crime Information Center, a widely available law-enforcement database maintained by the FBI, which he called "an unprecedented level of access for federal agents -- including ICE deportation agents."
Maryland does not describe itself as a sanctuary state, which generally means a jurisdiction refuses to cooperate with federal authorities on civil immigration enforcement. But several of its most populous jurisdictions, including Montgomery and Prince George's counties, and the city of Baltimore, have publicly restricted cooperation with ICE. More than 4 percent of the state's residents, or approximately 275,000 people, are undocumented immigrants, according to Pew Research Center estimates [8] last year.
Sens. Jeff Merkley (D-Ore.) and Cory Booker (D-N.J.) introduced a bill [9] this month that would suspend the federal government's use of facial-recognition technology until Congress passes regulations governing its use. San Francisco and other cities have banned local public agencies from running facial-recognition searches.
A Maryland state senator also introduced similar legislation to create a state-level moratorium "until there are statutory safeguards in place to allow the use of facial recognition services in ways that are beneficial and not harmful."
[6] https://mpa.maryland.gov/Pages/auto.aspx
[7] https://www.gao.gov/assets/700/699489.pdf
[8] https://www.pewresearch.org/hispanic/interactives/u-s-unauthorized-immigrants-by-state/
[9] https://www.merkley.senate.gov/imo/media/doc/20.02.12 Facial Recognition.pdf