PHOTO: Driver's license

Sample driver’s license.

WITH many, if not most, Americans willingly plastering their mugs all over social media, it may seem a little late to complain about government agencies using drivers’ license photographs to build massive facial-recognition databases without their knowledge or consent.

But there’s a big difference between deciding to put your own face out there for everyone on the internet to see, and having federal law enforcement agencies surreptitiously collecting your state-mandated photograph from the Department of Motor Vehicles without asking you first.

And it’s not just because DMV photos are notoriously unflattering. Or that people can get $5 for selling their face to Google.

Yet that’s what the Federal Bureau of Investigation and Immigration and Customs Enforcement have been doing, even though most of the people whose faces they are collecting have never been charged with a crime, according to documents obtained from researchers at Georgetown University’s Center on Privacy and Technology under a public records request and first reported by the Washington Post. Nor have their elected representatives in Congress or various state legislatures voted to allow what Jake Laperruque, senior counsel at the watchdog group Project on Government Oversight (POGO), called “a surveillance-first, ask-permission-later system.”

Missing from this photographic data gathering is one of the bedrocks of the Bill of Rights—the Fourth Amendment, which protects Americans from “unreasonable searches and seizures” without probable cause. If the FBI or ICE have reason to suspect that a certain individual has committed a crime, they can request the suspect’s DMV photo as part of their criminal investigation. But preemptively collecting the DMV photos of millions of Americans and storing them without their consent crosses that bright line.

Under Virginia law, law enforcement is allowed to collect and catalog the DNA of persons who are arrested and convicted of felonies and certain misdemeanors. Blood, saliva or tissue samples are then retained in the commonwealth’s DNA bank for future comparison “upon request made in furtherance of an official investigation or prosecution of any criminal offense, or to an accused or his attorney.” Having their DNA on file is one of the prices criminals pay for breaking the law.

Fortunately, Virginia’s DMV does not currently have an agreement with the FBI to search photos on its drivers’ license database. Let’s keep it that way.

Like DNA, the only reason law enforcement needs your facial photograph is to try to link you to some past or future crime. But drivers have an “expectation of privacy” that their DMV head shots will not be used for anything other than identification if they get stopped by a police officer, cash a check or board an airplane.

Gathering these photos without a search warrant and entering them in a law enforcement facial-recognition database without any probable cause seems to be a clear violation of the Fourth Amendment.

In last year’s Carpenter v. United States decision on law enforcement’s use of cellphone records, the U.S. Supreme Court ruled that “a person does not surrender all Fourth Amendment protection by venturing into the public sphere.”

Facial-recognition software marketed by Amazon to law enforcement agencies has also been found to misidentify darker-skinned women almost a third of the time, leading to the increased possibility of false arrests for people of color.

In “Facing the Future of Surveillance,” POGO pointed out that, “unlike cellphones, our faces are never able to be turned off, left behind, or cast aside …. Such data could be used for an immense array of future government activities, ranging from profiling, to selective law enforcement investigations, to applications for background checks, to evaluations for civil service employment opportunities.”

POGO recommends that instead of “subjecting the general populace to this invasive surveillance tool,” law enforcement be required to obtain judicial approval before using facial-recognition software to identify a suspect “based on a probable-cause determination that the individual has committed, is committing, or is about to commit a [serious] crime,” and strictly limit real-time use of this new technology to emergency situations.

Otherwise, keep Virginians’ drivers’ license photos in the DMV.

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