Privacy SOS

In bizarre reversal, FBI suddenly claims it is not negotiating with states over face recognition access

In June, the Government Accountability Office released a report criticizing the FBI’s facial recognition programs as privacy invasive, untested, and secretive. The GAO report got a decent amount of coverage, particularly in the independent and tech press. Included in the report was a map showing which states had agreements with the FBI’s FACE Unit to share mugshots and drivers license images for facial recognition scans, and which states were “under negotiations” with the FBI to establish such agreements. Massachusetts was listed among the latter states (see below). That was the first I’d ever heard of the Massachusetts RMV engaging in negotiations to share drivers license images with the FBI. Alarmed, I filed a public records request with the Massachusetts Department of Transportation to learn more about these negotiations. 

The initial map published by GAO.
The initial map published by GAO.

Then something bizarre happened.

On August 3 2016, the GAO published a modified version of its report. The only thing in the report that changed was Figure 4, the map revealing that states including Massachusetts were involved in negotiations with the FBI, presumably to allow the Bureau to begin performing facial recognition searches of state RMV records. The map initially stated that 18 states, including Massachusetts, were involved in these negotiations. The “corrected” map (see below) says there are “no negotiations underway” in these 18 states—a 180 degree reversal. 

The GAO's updated map.
The GAO’s updated map.

Confused about this change, I called the author of the report, Diana Maurer, the Director of Homeland Security and Justice Issues at the GAO. Ms. Maurer informed me that she was as surprised about the reversal as I was, particularly in light of the fact that her team checked the map in question with the FBI at least three times before publication. The FBI had approved the map and its contents, she said. Only later, after the ACLU published a blog post and ACLU affiliates began filing public records requests with Registries of Motor Vehicles in states across the country, did Ms. Maurer receive a phone call asking that she radically change the map. The FBI now informed her that no, these states were not in negotiations with the FBI, as its agents had on at least three occasions previously confirmed. What the FBI had initially characterized as “negotiations” actually described FBI employees having simply reached out to officials in the 18 states, Maurer was told. 

So what’s really going on? Did the FBI’s FACE Unit say it was negotiating with 18 states because it wanted to look productive to superiors and to congress, when in reality it had simply shared information about the program with those states? Or did the FBI actually consider those communications to be the beginnings of negotiations, only to realize after a privacy backlash that this boasting amounted to “too much” transparency?

We aren’t sure. The Department of Transportation in Massachusetts still hasn’t substantively replied to our public records request seeking information about its communications with the FBI’s FACE Unit. Let’s hope those records shed some light on this troubling situation.

© 2018 ACLU of Massachusetts.