ICE warrantless facial recognition searches trigger Maryland bill

A few weeks ago, Maribel Cortez was at home in Rockville, Maryland with her five kids and husband when one of her kids opened the door. ICE officers then arrested her husband in front of them. “They didn’t give any explanation. It wasn’t until they were detaining him and putting him in the car that [officers said they were] arresting him because they obtained the information in regards to his license,” she said speaking through a translator.

Cortez spoke today in the Maryland General Assembly in favor of a bill that requires ICE obtain a warrant from a judge before the agency can use facial recognition to search the Maryland Image Repository System or MRS.

Maryland began to issue driver’s licenses to immigrants in 2013. On Wednesday, the Washington Post reported that ICE searched the state’s immigrant driver license photo database of millions of drivers multiple times without a warrant. ICE has searched driver license photo databases in other states like Utah in the past, but the report says the Maryland incident may demonstrate ICE’s ability to search a state driver’s license photo database without the need for approval.

The debate happened the same day that the U.S. Justice Department created an office to denaturalize immigrants, and BuzzFeed News reported that Clearview AI has been used by the Department of Justice, ICE, and major retailers and governments around the world.

Access to photos of Maryland drivers is believed to come from a 2012 MOU agreement between the Maryland Department of Public Safety and the Department of Justice.

Multiple immigrants told advocates and reporters that ICE officers told them were arrested following a search of the photo database, but it’s unclear how often ICE accessed the Maryland database since the state has no auditing system to keep track of the number of searches inside Maryland or other states.

Georgetown Law Privacy and Tech Center’s Harrison Rudolph said warrantless photo searches by ICE is a “bait and switch for immigrants” that will subvert public safety and could lead to more dangerous roads.

“It’s my judgment that Maryland has a duty to the immigrants in this state who have trusted you and trusted the MVA (Motor Vehicle Administration) to give up their most private information so that they can get a driver’s license. So they feel safe waking up in the morning and taking their kid to school or the doctor. A mother today is waking up more scared in Maryland because she found out in the Washington Post that a federal agency has direct access to the MVA, that’s what this is about,” he said. “It is a betrayal of immigrants trust for the MVA to allow ICE agents to conduct warrantless face scans on immigrants photographs to identify people for deportation.”

State Senator Clarence Lam said Maryland encouraged immigrants to get driver’s license so they can cooperate with law enforcement, and to ensure they receive the same testing and training to get a license required for U.S. citizens.

“There are real benefits, and we’ve encouraged people to do so, and yet the state has opened up this information to searches by federal immigration officials, and as I mentioned, particularly given the privacy argument, this does impact all Marylanders, because all of us are subject to this virtual police line-up where federal agencies can go through and submit a photo and run it against any of our pictures that we have on our driver’s licenses,” Lam said.

According to Georgetown Law analysis, dozens of states currently have memorandums of understanding with the Department of Justice to provide access to driver’s license databases. Privacy advocates call this a way to involve millions of innocent people in searches by law enforcement. Rudolph said the MOU Maryland officials signed might be the most lenient in the country.

Senate Bill 649 sponsor Clarence Lam testified that laws exist in other states like Washington and New York requiring a warrant for ICE access. The Maryland bill was tailored to exclude other DHS agencies like the CBP and TSA. A lawsuit over New York’s Green Light Law led the Trump administration to revoke Global Entry program support for New York ports of entry earlier this month.

In response to testimony about the bill today, Senator Ronald Young on Maryland’s Senate Judiciary committee questioned whether a law like SB 649 could lead to retaliation by the federal government and whether it’s risky to enact legislation preventing cooperation with federal agencies that could lead to negative consequences. Young requested further input from the state attorney general and directly asked directly if President Trump would instruct the FBI to carry out searches on behalf of ICE.

On Wednesday, a judge in the 2nd Circuit U.S. Court of Appeals ruled in New York vs. DHS that the federal government can deny benefits to states who do not cooperate with federal agencies.  A prior contradictory ruling signals the issue could be headed for the U.S. Supreme Court.

“The Supreme Court will resolve this, and if we end up being on the wrong side of this aren’t we imperiling the benefits we’re going to receive from the federal government, and under the circumstances do we want to take that risk at this point?” he asked.

Lam argues the bill does not share immigration status data, just photographs, and said that with imperfect systems that exist today, you don’t have to be an exact match: You just have to look like an immigrant.

Another lawmaker expressed concerned about inaccurate facial recognition systems today that could cast a wide net and lead to racial profiling for innocent individuals regardless of a person’s immigration status. A December 2019 NIST study of near 200 facial recognition systems found that for some were 100 times more likely to misidentify Asian-Americans and African-Americans. Women, the young and old, and other groups also saw lower levels of accuracy compared to white men.

In light of clear rules, standards, or limits to how federal agencies can use facial recognition today, state lawmakers across the U.S. are considering a variety of laws for facial recognition regulation.

Before his death last year, Congressman Elijah Cummings led a bipartisan effort in the House Oversight and Reform Committee to examine facial recognition use by law enforcement and regulate use of the technology by the government.

FBI and ICE use of facial recognition is part of what motivated U.S. Senators Cory Booker (D – NJ) and Jeff Merkeley (D – OR) to propose a facial recognition moratorium until limits can be placed on the technology to protect personal freedoms like freedom of speech and the right to assemble.

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