(Daily Montanan) Most Montanans probably do not know that when they go to get their driver’s license picture taken, it is entering a system that feeds into a larger database used by national law enforcement agencies.

Or that when they apply for unemployment benefits, their picture could be shared with the government.

Those privacy anxieties are why legislators are studying how quickly developing facial recognition technology, which has seeped into everyday lives, is being used in the state and whether the government needs to regulate its use.

According to the PEW research center, 75% of adults in the U.S. either knew very little or nothing about facial recognition technology.

“Most states in the nation don’t have oversight over this technology, and we don’t know the extent of the use, how they are using, what kind of databases are made of Montana citizens,” said study sponsor Rep. Katie Sullivan, D-Missoula, during the legislative session.

The goal of the study, Sullivan said, is to learn how the government is currently using the technology and how it can be appropriately used going forward.

“The idea is to set smart policy now and prevent invasive surveillance technology in the future,” she said.

Those who spoke at an Economic Affairs Interim Committee on Wednesday broadly expressed the same opinion: There needs to be more transparency around the use of facial recognition technology in the state and whether government interest in its use outweighs Montana’s constitutional right to privacy.

“It’s like driving in a snowstorm … as we come through this storm, we need to find those guidelines and those guardrails so that we don’t infringe upon people’s rights,” said David Ortley, an assistant attorney general assigned to the Department of Justice’s Division of Criminal Investigation.

In his position, Ortley teaches constitutional law and criminal procedure at the Montana Law Enforcement Academy.

“We know the technology is here; it’s not going to go away. It ought to be used legally, efficiently, effectively. But again, consistent with that is the very important constitutional right to privacy that we all enjoy,” he said.

Currently, facial recognition software is used in Montana by the Department of Labor and Industry, the Motor Vehicle Division, the Crime Information Bureau, the Department of Corrections and the Division of Criminal Investigations. All agencies use the technology for different reasons and have different internal guidelines on how to use it.

But those guidelines are not sufficient, said Kendall Cotton, president and CEO of the Frontier Institute: “Internal policies are great, but what if a different administrator comes along and has a different opinion?” 

In a letter to the committee, Cotton recommended the state adopt standard operating procedures for criminal and non-criminal use of facial recognition technology.

Criminal Uses in Montana

The Montana Division of Criminal Investigation houses the Fusion Center, which provides analytical support to law enforcement agencies across the state. While the center says it does not have its own facial recognition database, it can submit search requests to other agencies with such databases to assist with crime investigation.

“DCI understands it is important that government entities who use facial recognition technology must ensure that all uses are consistent with authorized purposes, while not violating the privacy, civil rights and civil liberties of individuals,” said Anne Dormady, crime information bureau chief at the Division of Criminal Investigation.

She said that the center uses facial recognition technology to pursue investigative leads. According to the department’s internal policy, for a search to be authorized at the center, there must be reasonable suspicion of a crime.

“Facial recognition technology can be a valuable tool to detect and prevent criminal activity, reduce an imminent threat to health or safety, and help in the identification of persons unable to identify themselves or deceased persons,” Dormady said.

But, as the technology grows, more law enforcement agencies are starting to experiment with it. For example, four Montana law enforcement agencies downloaded and used Clearview A.I. — a controversial facial recognition company that marketed free trials of its software to local law enforcement agencies that uses things like pictures on people’s social media profiles to search and scan.

Earlier this year, Buzzfeed published a database of all police departments which have experimented with Clearview A.I. In Montana, the Gallatin County Sheriff’s Office, Missoula Police Department, the Fusion Center and the Great Falls Police Department were all listed as agencies which had downloaded the software.

While no departments continued past the free trial, Cotton said it could be a slippery slope without statewide regulations.

“We don’t know what their standards are .. is reasonable suspicion the legal standard that we’re going to go with?” Cotton said. “Or do we need a higher standard in certain instances, such as probable cause? Do we need a court order for certain searches and not others? I think that’s something that the Legislature needs to consider and debate.”

The Montana Department of Corrections also uses facial recognition technology through a contractor who provides alcohol monitoring systems to several counties within the state. People who are being monitored for alcohol use the technology to take a picture at the time of a remote alcohol test to confirm their identity. The DOC, through the same contractor, also uses the technology to perform location checks on people under their supervision.

Non-criminal Uses

The Montana Department of Labor and Industry started using facial recognition technology during the pandemic when scammers increasingly started targeting the unemployment benefits system.

“We want to make sure that the person filing that claim is that legitimate person, not someone who’s stolen somebody’s information. So that is how we are using it,” said Jeannie Keller, fraud prevention manager for DLI.

In October of 2020, DLI saw 3,200 instances of identify theft, Keller said. After that, the department contracted with the facial recognition company ID.ME to institute facial recognition technology as a way to beef up security against fraudsters. After the technology went into place, instances of fraud dropped to 2,000 in November 2020 and to almost single digits in December 2020, Keller said.

While preventing fraud is beneficial, Cotton said if you look at the policy for ID.ME, user’s data can be shared in response to government requests, which he said poses a concern about the security and privacy of law-abiding citizens who apply for government benefits.

Because DLI uses a third-party vendor, none of the facial recognition data is stored in Montana, and the department does not have access to it, Keller said. However, there is in-house use of facial recognition software at the Motor Vehicle Division and the data is all stored and preserved by the MVD.

“When a customer comes in for an initial identification card, we take their picture … And then once you come in for a renewal, or if you want to upgrade to a [commercial drivers license], the first thing we do is take your photo again, and then we match what you’re telling us your name is to the photo that’s in the database,” said Laurie Barki, Motor Vehicle Division administrator, at Wednesday’s hearing.

“Motor Vehicle Division is charged with maintaining identification information for the citizens of Montana, and we take that responsibility of obtaining that information and preserving it very seriously,” she said.

However, Montana’s driver’s license database is shared with national law enforcement databases like the National Law Enforcement Telecommunication System, which again worries Cotton.

“NLETS intends to develop FRT search capabilities, which may in the future subject law-abiding driver’s license holders to law enforcement FRT searches,” Cotton wrote in the Frontier Institute’s letter to the committee.

The committee is currently in its discovery phase of the study and at its next meeting in February, Sullivan said she hopes to hear from representatives of the third-party companies providing Montana agencies with facial recognition technology. From there the committee will dig in to see what kind of policies may be necessary to regulate the technology’s use.