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Utah refutes reports of sharing driver’s license photos with immigration agents

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FILE - Gov. Gary Herbert speaks to members of the media about tax reform and other current affairs at the Capitol in Salt Lake City on Thursday, Feb. 14, 2019.

FILE - Gov. Gary Herbert speaks to members of the media about tax reform and other current affairs at the Capitol in Salt Lake City on Thursday, Feb. 14, 2019.

Kristin Murphy, Deseret News

SALT LAKE CITY — Utah officials refuted reports Monday that the Utah Department of Public Safety allowed Immigration and Customs Enforcement officials to mine Utahns' driver's license photos using facial recognition technology.

Gov. Gary Herbert and Lt. Gov. Spencer Cox were "very concerned" about reports that ICE and the FBI were using the photos to form the foundation for a facial recognition database, according to the governor's office. But they say they were told by the public safety department, which oversees the state Driver License Division, that such reports were inaccurate.

Herbert believes in respecting residents' privacy and is committed to ensuring that the state's facial recognition system will only be used for law enforcement purposes and never against law-abiding Utahns, according to his office.

"The stories over the weekend did make it seem as if there was batches of information and photos over everyone being sent" to the federal agencies, said public safety department spokeswoman Marissa Cote. "That's not the case."

The Utah Statewide Information and Analysis Center — not the Driver License Division — runs the state's facial recognition system, she said. The center received 49 facial recognition requests from ICE between October 2015 and November 2017.

Each one was tied to a case or intelligence report number or a criminal investigation. In some of those cases, ICE provided a photo of a person whose identity was confirmed through facial recognition software of a Utah driver's license photo, Cote said.

Cases involved heroin trafficking, drug smuggling and identity theft, she said. Not all of the people searched using the state's facial recognition technology were undocumented immigrants, she added.

"Federal agencies or agents don't have free roam of our database. They don't have access to it at all. They have to go through us to get information they are searching," Cote said. "We do respect people's privacy."

If the reports are true, the governor and I are deeply concerned and not OK with it. – Lt. Gov. Spencer Cox

The Utah Department of Public Safety later issued a statement specifying that of those 49 requests, "less than 10% of those resulted in a positive hit. Meaning 90% of the time no information was given to the requestor."

Utah political leaders on both sides of the aisle were upset about news reports that the public safety department allowed ICE to sift its driver’s license database with facial recognition technology, scanning Utahns' photos without their knowledge.

"This makes me sick! Where are all my Utah states’ rights friends?," Utah House Assistant Minority Whip Angela Romero, D-Salt Lake City, tweeted.

Cox told reporters, "If the reports are true, the governor and I are deeply concerned and not OK with it."

In at least three states that offer driver’s licenses to undocumented immigrants, ICE officials have requested to electronically analyze driver's license photos, according to newly released documents first reported by the Washington Post. At least two of those states, Utah and Vermont, complied, searching their photos for matches, those records show.

"It is not OK that the Utah state DMV officials turned over data to ICE to help set up a surveillance system. I’ll be joining with legislative colleagues to get answers about how this happened. I’m sure our concerns will be bipartisan," House Minority Leader Brian King, D-Salt Lake City, tweeted.

Georgetown Law’s Center on Privacy and Technology sent public records requests to each state, searching for documents related to law enforcement’s relationship with state motor vehicles departments. They received varying degrees of responsiveness but discovered the ICE requests in Utah, Washington and Vermont, according to the New York Times.

Rep. Mark Wheatley, D-Murray, a leader in the Utah Hispanic Legislative Caucus, said no one registers for a driver's license or state identification card with the belief that this information could be used against them. The story has already exacerbated fears within our immigrant and non-white communities, he said.

For years the Utah Legislature has made it clear that federal access to driver's license records is only permitted on a limited basis, and allowing wide access without legislative approval is a "dangerous misstep."

Though Utah has become a leader in protecting electronic privacy on several fronts, the Utah Department of Public Safety has apparently provided ICE some types of biometric information for nearly a decade.

In 2014, Utah became the first state in the nation to pass a law protecting location information and electronic communications content, regardless of age, from government access.

This year, lawmakers again led out with a bill requiring law enforcement to obtain a warrant before accessing electronic data held by a third party.

"But in a sense, the same situation applies here where the government has become the third party," said Connor Boyack, president of the Libertas Institute.

The Utah public safety department signed an agreement with ICE in 2010 to share data, including fingerprints, of undocumented immigrants charged and convicted of crimes.

Sharing driver license information with ICE sets up a broad database without sufficient restrictions for the federal government to go on a fishing expeditions, Boyack said.

This isn't the first time it has happened, he said, pointing to the state's controlled substance database from which police mined Utahns' sensitive medical information without permission. That led to litigation and the Legislature eventually passing a law requiring law enforcement to get search warrants to access the data.

"The concern then was the same as the concern now is that when people are compelled to have their information part of a government database, that doesn't necessarily imply consent to have the government access it at will for any reason or no reason," he said.

Marina Low, American Civil Liberties Union of Utah legislative and policy director, said reports that the state allows ICE to run facial recognition searches in the driver's license database should alarm anyone who values privacy.

"These reports confirm that a massive, hidden surveillance infrastructure isn't just science fiction, it's already happening," she said.