In a letter this week, the group charged that the program used by the Department of Motor Vehicles is in violation of state law passed in 2004 restricting collection of biometric data.
The DMV says the software, which collects and scans thousands of images in a database, is used to detect fraudulent applications. However, the department also will search the database upon request from other law enforcement agencies.
Records obtained by the Vermont ACLU show that since the program began in December 2012, the DMV complied with at least 126 requests from agencies across the country to search the database. The requests came from U.S. Immigration and Customs Enforcement, the Federal Bureau of Investigation, the Missouri Department of Revenue and others.
The revelations prompted concern among advocates about the impact the facial recognition program could have on unauthorized immigrants because of Vermont’s driver’s privilege card law. Applicants get the photo ID cards through the DMV but do not have to prove they are authorized to live in the country. The state created the new form of credential in 2013 in an effort to extend driving privileges to immigrant workers.
“Our initial understanding was that it was being used in a way that was compliant with state and federal law,” said Rebecca Kelley, a spokesperson for Scott. “We’ve come to understand that no legal analysis had been done to confirm that.”
Motor Vehicles Commissioner Robert Ide responded to requests for comment with a referral to a statement from Kelley concerning the program’s suspension.
The ACLU of Vermont requested records on the facial recognition program in late 2016 after a report published in October shed light on how the FBI can access Vermont facial recognition data. Seven Days reported this week that the program appears to violate state law.
In an 11-page letter to the DMV this week, Vermont ACLU staff attorney Jay Diaz argued the program is illegal in Vermont. He also said the program lacks “meaningful privacy protections,” does not have sufficient oversight and has questionable accuracy.
“We clearly cannot trust the DMV to continue operating a program that we know violates state law,” Diaz said Wednesday.
After Scott’s order to suspend the program, Diaz called the move a “victory for Vermonters’ privacy and civil liberties.”
The program, he said, is “illegal, dangerous and violates Vermonters’ basic dignity.”
Incidents that suspects were allegedly involved with range from murder to identity theft and “suspicious activity,” as in one 2016 case when a request was filed for a person who behaved unusually in a Williston gun shop.
In one 2014 instance, Pennsylvania officials asked the state to search the database for a suspect who escaped from prison in 1972 and would be 84 years old at the time of the search.
In response to each request, the DMV provided the photographs and information of as many as 50 people, according to the state ACLU.
“There’s a lot of potential for Vermonters’ very personal information to be lost and potentially get into the wrong hands,” Diaz said.
The Vermont ACLU charges that the program was established without sufficient vetting by the public.
“Vermonters were never given the opportunity to ask themselves, is this program worth it?” Diaz said.
In December the Vermont Intelligence Center sought a search of the database for a 30-year-old female for “visa overstay.”
“DMV is holding out the keys to the kingdom for ICE and the Trump administration to grab whenever they like,” Diaz said.
The DMV also processed several requests for Homeland Security Investigations, a branch of ICE. One request, in March, sought information about a male and a female suspected of identity theft in Florida.
Brendan O’Neill, of the activist group Migrant Justice, said the indication that Vermont authorities may have collaborated to use the resource to look into immigration status could violate the law.
The DMV has previously come under fire from advocates over emails showing that department investigators frequently had contact with federal immigration enforcement agents when investigating driver’s privilege card applications.
Last year, the department agreed to make several changes to its policies in a settlement of a case brought by a Jordanian man who was detained by ICE agents when he arrived at a DMV appointment.
“Unfortunately, the facial recognition software seems to just give a state agency one more tool in their toolbox that they not only don’t need but can’t be trusted with based on their track record,” O’Neill said.
Ide did not respond to requests for comment on this issue.
Maj. Glenn Hall of the Vermont State Police said the Vermont Intelligence Center, which facilitates information requests from local, state and federal law enforcement, processed the December request for the Department of Homeland Security. It was a “broad” request, he said, and several intelligence centers in other states were asked to do it as well.
“Facilitating these types of requests is consistent with the role of Fusion centers across the country and with federal law,” he said.
