A proposal to clearly authorize but regulate the use of facial recognition software on Utah’s driver license database fell flat at the Legislature on Wednesday, with the bill facing a bipartisan chorus of concerns related to privacy and warrantless searches.
But the bill’s sponsor, West Valley Republican Sen. Dan Thatcher, warned that inaction would mean the practice continues without legal guardrails as the state’s Department of Public Safety works to block bad actors from obtaining fraudulent identification.
“If we are going to issue a government ID,” Thatcher said, “then the onus is on us to ensure that we are not issuing an ID that can be used for identity theft or voter fraud or any of the other bad things you can do.”
Thatcher said that prior to the department’s adoption of facial recognition technology roughly 10 years ago, people were able to apply for and obtain a valid, government-issued identification card under a false name or birth date. That meant minors being able to engage in age-restricted activities, he said, and individuals applying for lines of credit with someone else’s information.
“They weren’t even fake IDs, they were real IDs issued by the state of Utah,” Thatcher said. “The way we found to stop that from happening was with the use of facial recognition software.”
When lawmakers first discussed the issue in September, there seemed to be some support for banning use of the technology on driver licenses. Several members expressed outrage at the revelation, first reported by the Washington Post and New York Times, that Utah was among a handful of states allowing the FBI and Immigration and Customs Enforcement mined data in millions of driver licenses.
Department of Public Safety officials said while such searches were conducted looking for identified suspects in criminal cases, the reports were overblown and denied there were wholesale fishing expeditions taking place.
Under Thatcher’s proposal, Utah driver license applications would include a disclaimer that a person’s image may be used to conduct facial comparisons “in relation to a criminal investigation or a fraudulent or inaccurate application, to mitigate a life-threatening emergency, or to identify an at-risk or deceased person.”
The bill would establish the Department of Public Safety as the only government entity authorized to use facial recognition software, and Thatcher said he intended to add an amendment that would require a warrant for “ongoing” investigations, but not for routine image comparisons.
Members of the Government Operations Interim Committee raised several objections, including that the bill would not allow Utahns to opt out of having their images used, that it would include comparisons to minors in the driver license database, and that it could run afoul of constitutional restrictions on warrantless searches and seizures.
And Rep. Karen Kwan, D-Murray, said that previous committee discussion on the topic had led her to expect a bill that would halt the use of facial recognition software — rather than authorizing it in state law — until those and other questions could be resolved.
“I still have my initial concerns about the use of the software,” she said.
The bill was also opposed by representatives of the Utah Eagle Forum and the ACLU of Utah, who urged committee members to continue working toward consensus legislation.
“We can do better,” said ACLU attorney Marina Lowe. “We can come up with a set of rules that I think we can all live by.”
Maryann Christensen, the Eagle Forum’s executive director, said it "makes no sense” to simply write a law adopting current Department of Public Safety practices just to have a law in place.
“I would vote against this bill,” she said, “I hope you’ll do that and that you will look to the future.”
Thatcher repeatedly attempted to compare the facial recognition process to a person being pulled over on suspicion of drunken driving. Drivers can refuse to consent to a blood draw — or decline to submit their images to the driver license database — but the likely result would be the loss of their driver licenses.
“Driving a motor vehicle is a privilege,” he said. “And not a right.”
Committee members, and particularly Blanding Republican Rep. Phil Lyman, took issue with that analogy. And Thatcher, the committee co-chairman, ultimately moved to adjourn the committee before a vote could be held on his bill, effectively ending consideration of his proposal for the time being.