KOJO NNAMDIYou're tuned in to The Kojo Nnamdi Show on WAMU 88.5, welcome. Later in the broadcast we'll dig into how national monuments are funded beyond our tax dollars. But first law enforcement officer with access to the National Crime Information Center have been able to search Maryland's Motor Vehicle Administration data without prior court approval since 2012. U.S. Immigration and Customs Enforcement logged at least 100 sessions in the state's driver's license database in the last two years alone. Privacy advocates express concern that Maryland has granted federal investigators more leeway than most states and immigration groups worry it will have chilling effect on public safety.

KOJO NNAMDIWhat do you think? If you live in Maryland were you aware that federal authorities could access your data from the state? Give us a call 800-433-8850. Send us a tweet @kojoshow or email to kojo@wamu.org. You can also go to our website kojoshow.org. Ask a question or make a comment there. Joining me in studio is Harrison Rudolph, Senior Associate with Center on Privacy and Technology at Georgetown Law. Harrison Rudolph, thank you for joining us.

HARRISON RUDOLPHThanks for having me on.

NNAMDIICE has had access to Maryland driver's data since 2012 after a memorandum of understanding was reached between Maryland and the Department of Justice. How do these searches work and how is the data supposed to be used?

RUDOLPHThat's right. So U.S. Immigration and Customs Enforcement has had the ability to conduct searches of Maryland's face recognition system since 2012. The way this works is that Maryland created a criminal justice dashboard that allows any federal law enforcement officer with a particular credential. In this case an NCIC or National Criminal Information Center credential to log directly into Maryland's face recognition system. Plugged into that face recognition system aren't just a handful of photographs of criminally convicted people or even criminal suspects, but rather every Maryland driver, every person with a Maryland driver's license.

NNAMDIIt was reported at The Washington Post that a Maryland law enforcement official notified the General Assembly that U.S. Immigration and Customs Enforcement made around 100 searches in the database since 2018. Which law enforcement agencies have access to Maryland's data under this agreement?

RUDOLPHRight now today in Maryland any federal law enforcement officer with a particular kind of credential can dig directly into Maryland's face recognition system. U.S. Immigration and Customs Enforcement deportation agents, FBI agents, DEA agents, whoever has that credential has direct access.

NNAMDIThat would include police chiefs in cities and jurisdictions around the country?

RUDOLPHAnyone with that credential.

NNAMDIHow does the facial recognition technology work?

RUDOLPHWhen law enforcement, be it ICE, FBI, whoever it is is looking to identify a particular person they take a photograph that they have on file for that person. And at that moment don't really know who it is. It's a photograph. Maybe it's a surveillance photo. Maybe it's from social media. Wherever they found it, they submit it to this system. In Maryland they do it directly. They just upload a file. They uploaded the photograph. And what the face recognition algorithm does is compare that face in that photograph to every face in its database, which in Maryland includes every driver, every I.D. holder. And it spits back an analysis. Okay. You sent me a photo of let's Harrison Rudolph. Here are X number of people who the algorithm thinks might look like it, but the technology isn't necessarily accurate.

NNAMDII was about to say, what are some of the weaknesses in this facial recognition technology?

RUDOLPHA couple of months ago the gold standard for evaluating these systems, the U.S. National Institute of Standards in Technology, took a look at a lot of commercial face recognition algorithms. And what they found was that most of these algorithms tended to perform worse on people of color and on women. And not just a little bit, but for many of these algorithms 10 times, 100 times worse. What that means in practice is that in that ranking, in that order of folks that that system spits back as being a match it's more likely to misidentify people of color. That can have serious consequences for folks.

NNAMDI800-433-8850 if given the choice, would you allow federal law enforcement to access your driver's license information? And what concerns do you have about facial recognition technology? Give us a call 800-433-8850 or send us a tweet @kojoshow. Joining us in studio is Ana Martinez, the Lead Organizer with CASA. Ana Martinez, thank you for joining us.

ANA MARTINEZThank you.

NNAMDIIn 2013, Maryland became the first state on the East Coast to allow undocumented immigrants to obtain a driver's license without providing proof of legal status. Since then almost 300,000 licenses were issued. How does this impact immigrants with this type of identification?

MARTINEZThis definitely has a huge impact. The reason that we passed this legislation is to make sure that community members felt comfortable to go to work, take their children to school. And now knowing that this information is being used against them is unfair. We actually just had a situation about two weeks ago where we had a community member that was stopped by Immigration Enforcement. They let her go, and then she received a panic call from her eight year old, and it turns out they were detaining her husband at their house.

MARTINEZSo when she went running back to see what had happened, it turns out that immigration went inside the house. An eight year old opened the door. They went inside and detained her husband while he was having breakfast with her children and just took him outside. And when we're having that conversation and what had happened it turns out the children mentioned that the husband asked regarding the how they knew the information. And Immigration Enforcement said it was because of the MVA.

NNAMDIAnd her husband did not have any relationship with law enforcement? He had not been charged with a crime? He had not been accused of a crime?

MARTINEZHe had not been charged with a crime. This was a civil case.

NNAMDIThat was it.

MARTINEZThat was it.

NNAMDIAllow me to go to the phones, because Frank in Southern Maryland doesn't have a whole lot of time. Frank, you're on the air. Go ahead, please.

FRANKThank you, Kojo. I just wanted to ask can Governor Hogan get ICE out of the MVA. We don't want them around here. So get them out of here.

NNAMDIThank you very much for your call, Frank. Do you agree with Frank? Give us a call or if you disagree you can also call 800-433-8850. A spokeswoman for U.S. Immigration in Customs Enforcement provided the following statement to us in response to The Washington Post report, about the story that Ana Martinez just talked about.

NNAMDIQuoting here, "The drivers whose profiles were being run in the Maryland database correlate to ICE investigators looking for information on specific perpetrators in several dozen investigations involving child exploitation, human trafficking and other cases in pursuit of federal criminal prosecutions. Stories like this do not lead to intelligent discourse about civil immigration enforcement and only serve to play up unfounded fears based on speculation by advocacy groups such as the ones quoted in the article. They also further inaccurate narratives that portray civil immigration enforcement as random when the fact is ICE conducts targeted immigration enforcement actions consistent with federal law."

NNAMDIICE informed us that the number of searches in the database that were reported by Maryland are not individual cases. Harrison Rudolph, as an expert in this type of data collection, are the fears unfounded?

RUDOLPHICE has had so many opportunities to deliver a message to folks that they don't need to be afraid. That they aren't going to engage in the exact kind of civil immigration enforcement actions that people are concerned are having. Instead of saying, this won't happen. This hasn't happened and it won't happen going forward, ICE has said, maybe it doesn’t always happen. Maybe it's not a routine activity for ICE, but for me for my perspective I think these fears are entirely legitimate for that exact reason. ICE doesn't deny that it will happen, hasn't made it a policy that it won't. And there's every reason to believe that it is happening right now and that it is targeted towards the most vulnerable folks.

NNAMDIAna Martinez, the individual, the man who has been detained, who it is my understanding is still in detention. Has he been accused of being involved in an investigation involving child exploitation, human trafficking or any other criminal activity whatsoever?

MARTINEZSo in this particular situation I'm not his lawyer and I can't represent him on some components, but as far as we're aware, there hasn't been any accusations. And we want to make sure that when it comes to the policy that there should be -- if there is a similar situation that they should have judicial warrants when it comes to these cases. But as far as we know there hasn't been anything more severe that has happened.

NNAMDIOn to Beatriz in Silver Spring, Maryland. Beatriz, you're on the air. Go ahead, please.

BEATRIZYes. Thank you, Kojo. Thank you so much for covering this issue. As a Marylander and a resident in Maryland what is it -- can we do something? This is extremely worrisome, especially for immigrants in our state, but facial recognition by anyone with a certain credential, what can we do as residents? Do we need to write to our members of Congress? What do we need to do?

NNAMDIWell, we have someone who seems, I think to be trying to do something about this. And he joins us now by phone. Clarence Lam is Maryland State Senator representing District 12, Baltimore County and Howard County. Senator Lam, thank you for joining us.

CLARENCE LAMThank you. Glad to be back on the show.

NNAMDIYou just heard Beatriz's question about what Marylanders can do. You've been digging into to Maryland's data sharing with federal authorities for years. What have you found?

LAMWell, we've been looking at this for the last several years, Delegate Stein and I and he's the House sponsor. And up until last year it was really difficult to get solid information out of our State Department of Public Safety as to whether or not these searches were actually taking place. And late last year we finally received written confirmation that ICE was accessing the state's public safety database and that data includes information that's extracted from the MVA database including photographs of every Marylander, who has submitted to a driver's license.

LAMAnd so what we've done now is sponsor legislation to make sure that there are proper protections in place for individuals, because as Ms. Martinez mentioned we did pass legislation back in 2013 to encourage undocumented individuals to still seek a standard driver's license. What this bill does is require ICE if they are conducting a civil investigation to have to get a judicial warrant. They have to go before a judge to be able to make that case. Just like if law enforcement wants to go in to do a search or a seizure they have to make a case to a judge and get a judicial warrant to be able to conduct that search. It's an added level of protection. It's very reasonable, just like you would for any search or seizure.

LAMThat it's really just for these instances where they want to go searching the database through facial recognition software to have to have this requirement. And it's not meant impede any criminal investigation as ICE had cited earlier with child exploitation cases and other criminal matters. It is not intended to restrict those criminal investigations from going on. This is really just pertaining to the civil side requiring that there be judicial warrant in place.

NNAMDIHere is Theo in Baltimore, Maryland. Theo, you're on the air. Go ahead, please.

THEOHi. Thanks for taking my call. I had the good fortune of interning with CASA back in 2013-2014. And I worked as one of the lobbyists that passed this bill. And it's just really disappointing what has occurred. And I'm very happy to know that Senator Lam is working to address this. Two of the key things that really were able to win over -- I'm originally from Salisbury. So I was able to win over a lot more conservative minded individuals was the very fact that one of the goals of this legislation by getting people to sign up for driver's license is to reduce the number of people that were uninsured. And by having people now be fearful of submitting registration they are going to be unfortunately many instances driving without a license and thereby being uninsured, and further increasing our insurance rates.

THEOAnd secondly the other thing was to reduce racial profiling. Unfortunately in my community of (unintelligible) there have been instances of racial profiling where local police officers would pull people over, because they thought that they may not be driving without a license enabling them to arrest them. And then put them into detention and then refer them over to ICE. So what is being done right now is defeating two of the very reasons that this bill was passed. And it's just incredibly disappointing. And I'm very happy to know that Senator Lam is working on this.

LAMThank you.

NNAMDIThank you very much for your call, Theo. Senator Lam, I suspect Governor Hogan is not going to sign any legislation that limits Maryland's cooperation with ICE. Without the governor's cooperation, who will ensure there is oversight in the way the data is used?

LAMWell, right now there is no oversight over how the data is used. And that's one of the concerns that we have. As Mr. Rudolph mentioned earlier, anyone with this particular NCIC credential can log into the system. And there seems to be very little auditing and monitoring by the Maryland Department of Public Safety as to the types of searches being done, the accuracy of those searches and any other basic information that's being collected.

LAMIt's really a privacy issue not just for undocumented individuals who have these standard driver's licenses, but for everyone in Maryland, because I think most Marylanders don't recognize and don't realize the fact that when they go into to submit information into the driver's license database when they obtain a driver's license all of that information is accessible to federal law enforcement including their photograph, which can be run against a facial recognition software that can generate errors. And so that's really concerning for a lot of folks. And that's why we need to have better information collection about how often this is going on too. And that's another piece of this bill.

NNAMDIHarrison Rudolph, do you agree? Should a Maryland resident be concerned about the use of this technology regardless of his or her immigration status?

RUDOLPHThat's exactly right. If you're hearing this and thinking that because you're a U.S. citizen that this doesn't affect, you're wrong. Face recognition technology is a flawed tool. It can misidentify people. It can misidentify a U.S. citizens and it tends to misidentify folks, who in particular are people of color or who are woman. That can lead to false investigations of U.S. citizens.

NNAMDIWe got an email I think from Constance in Maryland -- or a call. Constance couldn't stay on the line. But Constance says, "I'm wondering why people have such a problem with ICE trying to do its job. Without laws we don't have a country. They lump together immigrants and illegal immigrants." How would you respond to that, Ana Martinez?

MARTINEZI think this is going back -- as we mentioned the legislation is focusing that it should have a judicial warrant if they're a more serious situation going on. But we are currently in a situation where they're just targeting immigrants and they're just going as I mentioned before, they just went into this person's home and took him while he was having breakfast with his children when he hadn't done anything wrong, and that's what we're talking about.

NNAMDIThere's way too many cases of people that are just on their way to work and they get stopped. So we're not trying to prevent if there's, say, a more criminal or a more difficult situation. We just want to make sure that there's a difference between those situations compared when it comes to also civil cases.

NNAMDICare to respond to that, Senator Lam, the sentiment that Constance expressed about ICE simply trying to do its job and its job in Constance's view is to just get undocumented immigrants out of the country.

LAMRight. And I think that's -- and I understand that. And we're not trying to impede that at all. I think it's a very reasonable request to have ICE submit to a judge information about why it needs to run facial recognition software against a particular photograph or search the database. Again, it's no different than any other law enforcement agency having to appear before a judge to show probable cause for seizure of property or to conduct the search of someone's home.

LAMIt's the same standard that's being applied to this facial recognition database. I think most Marylanders would be terrified to know that they're being subject to a virtual police lineup every time ICE or any other law enforcement agency goes into the database and tries to apply a facial recognition software tool against all the photos in the database. And I think there's a very real privacy issue here. And that's why I think it's fair to have a judge evaluate that request before it goes through.

NNAMDIAnd I'm afraid that's all the time we have in this segment. Clarence Lam is a Maryland State Senator representing District 12 Baltimore County and Howard County. Thank you for joining us.

LAMThank you.

NNAMDIAna Martinez is a Lead Organizer with CASA of Maryland. Ana Martinez, thank you for joining us.

MARTINEZThank you.

NNAMDIAnd Harrison Rudolph is Senior Associate with the Center on Privacy and Technology at Georgetown Law. Harrison Rudolph, thank you.

RUDOLPHThanks for having me on.

NNAMDIGoing to take a short break. When we come back we'll dig into how national monuments are funded beyond our tax dollars. I'm Kojo Nnamdi.

NNAMDIEarlier in the broadcast we were talking about the access that law enforcement agencies have to Maryland's database and we got a call from Special Agent John Eisert in Baltimore, who is in charge of Homeland Security investigations. He joins us by phone right now. Special Agent Eisert, thank you for joining us.

JOHN EISERTThank you, Kojo. I appreciate the opportunity to add a little context to these ICE operations.

NNAMDIHow often are searches of Maryland's driver data used for civil immigration enforcement?

EISERTI'm sorry?

NNAMDIHow often are searches of Maryland's driver data used for civil immigration enforcement?

EISERTFor civil immigration, not often at all. We do use facial recognition and my special agents for Homeland Security investigations do so in furthering the criminal investigations where we have an offender or a victim's photo. We do not use the technology for routine immigration enforcement.

NNAMDIWell, why not just get a warrant?

EISERTIt delays the process, the indigency. If I could just walk you through a quick back pattern of what some of our cases may look like. As an investigator often me or my special agents only have a picture or a video for example. Let's say an offender violating a child or a victim of human trafficking that's being posted online for advertisement. These pictures and videos they depict real time abuse of a victim. In they are photos or videos are anonymous this photo that you're looking at, they're time sensitive. Matching faces is the most efficient way to arrest offenders, rescue victims and get them the services they need.

EISERTSpeaking to Maryland specifically we have multiple cases going through the pipeline right now involving sex trafficking by force, fraud or coercion, and facial recognition was instrumental in identifying the victims getting the services that they need, identifying witnesses and identifying offenders.

NNAMDIBut do you think that public safety should override concerns about privacy in this case?

EISERTWell, you know what, the privacy debate is an important debate. I can appreciate that. It should be had. I guess, what is ask is that law enforcement be heard as well in common picture painted so that the best outcome can happen. There are time where we see servers that host child exploitation forums and we're talking thousands and thousands pictures at any given time. The only one way to tackle that is you need the law enforcement tools that me and all my law enforcement partners across the federal ...

NNAMDIWell, I'm running out of time very quickly, but we do appreciate the fact that law enforcement should be heard and that's why we wanted to make sure that you were heard in this broadcast, but I'm afraid right now I'm completely out of time.

NNAMDIThe segment about patriotic philanthropy was produced by Cydney Grannan. Our conversation about ICE's access to Maryland's driver's license database was produced by Victoria Chamberlin. Thank you all for listening. I'm Kojo Nnamdi.