Editorial: State right to reject scan of drivers photos

By The Herald Editorial Board

In a state where privacy rights are taken seriously — and a concern shared by Republicans and Democrats alike — a report that federal immigration officials sought to comb through Washington state’s database of drivers license photos was rightfully alarming.

And puzzling, because it was just last year that Gov. Jay Inslee had ordered the state Department of Licensing to end its routine hand-over of personal information from drivers licenses to Immigration and Customs Enforcement officials looking to identify undocumented immigrants, in violation of an executive order the governor had signed the year before.

Yet, The Washington Post at the start of the week reported federal officials with ICE had requested that the licensing agencies in Washington state and two other states perform digital facial recognition scans of drivers license photos in a search for undocumented immigrants. (Washington is one of more than a dozen states that allow those immigrants to obtain a drivers license.)

The report found that Vermont and Utah complied, but Washington state had rejected the request because its policy requires a court order to obtain information from the system.

But even a court order might not have been enough to shake the information loose. Gigi Zenk, a spokeswoman with the state licensing agency told Seattle public radio station KUOW (94.9 FM), “if we have found that it is related to immigration, we would not release information.”

The agency’s director, Teresa Berntsen, made clear there is no external access to its facial recognition system: “System access is limited to very few specially trained DOL staff. We take very seriously our responsibility to protect the data and information of all Washingtonians.”

The emphasis on “all Washingtonians” is appreciated here since such scans would have scrutinized the photo of every driver — and non-drivers who obtain a state identification card — in the state, using technology that is coming under increasing doubts about its accuracy and concern for its intrusions into privacy. Further, no one applying for or renewing a drivers license had been informed or given her or his consent to use those photos beyond inclusion on individual licenses.

In May, congressional Democrats and Republicans during a hearing before the House Oversight and Reform Committee were clear in their concerns that the technology was inaccurate and posed a danger to privacy rights, the Post reported, with one Republican comparing it to Big Brother in George Orwell’s “1984.”

A maker of police body cameras, Axon, announced last month that it was declining to include facial recognition technology in the products it offers to law enforcement agencies, GeekWire reported.

“No jurisdiction should adopt face recognition technology without going through open, transparent, democratic processes, with adequate opportunity for genuinely representative public analysis, input, and objection,” Axon’s technology ethics board said in an announcement.

The problem — beyond issues of privacy, consent and public notification — is the accuracy of recognition software itself. Last week’s Post story noted that a Government Accountability Office report found the FBI’s facial recognition system was 86 percent accurate in generating a list of 50 possible matches, but its accuracy had not been tested for a search with fewer possible matches, increasing the potential for misidentification and false arrests.

The software seems to have a particular difficulty with photos of people with darker skin, which calls further into question its use by immigration officials. Researchers at the Massachusetts Institute of Technology, in a January report, found that the recognition software marketed by Amazon misidentified darker-skinned women as men 31 percent of the time, according to a New York Times report.

While assurances from the state Department of Licensing are reassuring, that policy is just that: policy, subject to change depending on who’s in the governor’s office.

State lawmakers this year attempted to adopt legislation to address the collection, use, sharing and sale of personal data by government agencies, law enforcement and corporations. While there was general agreement regarding the need for such protection, the legislation itself failed over objections from a range of representatives of consumer, technology, civil rights, law enforcement and legal organizations.

A last-minute deal — one that largely erased the public process up to that point by resorting to a title-only bill — was hammered out by a few lawmakers and representatives of the state’s big tech firms but was rejected by the House just before the session’s deadline.

That was the right decision, but it leaves the Legislature with unfinished work to take up next year to safeguard the public from the abuses of technology that Orwell warned about, whether it’s in the hands of government or corporations.

Correction: An earlier version of this editorial gave an incorrect frequency for KUOW (94.9 FM).