TXDPS thumbs nose at legislative will

Some bureaucrats just won't take "no" for an answer.

The Texas Department of Public Safety in November issued a Request for Proposals (RFP) that envisions gathering biometric "facial recognition" data from Texas drivers license applicants, despite an overwhelming 111-26 vote in the House of Representatives in 2003 rejecting the idea.

Back then, legislators criticized the proposal as smacking of Big Brother, and the bipartisan House vote against the idea enjoyed the largest vote margin of any bill defeated in the 78th Texas Legislature.

But DPS ignored that stated legislative will, demanding in its November RFP that vendors' applications for its drivers license re-engineering project include the technology. DPS called facial recognition systems a "future business requirement," and required vendors to, "Propose facial recognition solutions to include functions for one-to-one and one-to-many image comparisons."

Ironic that DPS considers facial recognition technology a "requirement," since the Texas House told them they couldn't have that authority in no uncertain terms! Who is requiring it, one wonders? Elsewhere DPS said facial recognition would not be included in the initial work order, but the vendor must ensure the system "is expandable to accomodate facial recognition technology."

So obviously, DPS has its own plans regardless of what the Legislature wants. In the Q&A accompanying the RFP, DPS elaborated on this "requirement":

The one-to-one comparison of portrait images will be performed by comparing an applicant's portrait image collected at the time of issuance to the most recent portrait image on file. A one-to-many comparison of portrait images will be performed by comparing an applicant's portrait image collected at the time of issuance to the most recent portrait image collected for each applicant in the database. (Question 55)

Oh it WILL, will it? That's exactly what the House of Representatives DIDN'T want DPS doing. Really, issuing that RFP required an awful lot of chutzpah.

Somewhat inexplicably, given the spectacular way this legislation was defeated in 2003, DPS is obviously counting on the Lege to change its mind. They've still got a few die-hard champions. Rep. Frank Corte, R-San Antonio, who carried this legislation last session, today filed HB 2337, which is essentially similar to the 2003 legislation in all important respects. Last time he could only convince 25 of his 150 House colleagues to support him, but apparently hope springs eternal.

Not only does the bill create a database of facial recognition information on Texas drivers, it would remove all restrictions on how law enforcement could use the data. This is part of an increasing trend toward the criminalization of civil life, where every citizen interaction with government is viewed by the latter as an opportunity to pursue a criminal investigation.

Law enforcement can already access DPS thumbprint information with a court order, but not without a judge's consent. This legislation removes that requirement, allowing the information to be used for either "establishing a person's identity" or "conducting an investigation of criminal conduct." That opens the database up for any conceivable application. Establishing a person's identity is a DESCRIPTION of what the technology does, not a restriction on its use.

Of course, fears about Big Brother assume the technology actually works well. In fact, facial recognition data is a poor biometric. The thumbprint DPS already gathers is more accurate than facial images as an identifier because it doesn't change. A person might grow facial hair, wear glasses or heavy makeup, gain or lose weight, suffer disfigurement in an accident, or otherwise change their appearance to make it difficult to match them. By contrast, thumbprints are much more reliable. A study by the National Institute of Standards and Technology found that digital comparisons of posed photos of the same person taken 18 months apart triggered false rejection by computers 43% of the time. Drivers license renewals take place once every six years, so arguably the match rate would be even worse.

The technology is just not ready for primetime, plus the Lege didn't experience near enough turnover to think they'll improve their vote margin in 2005. DPS should have listened to the Legislature last time around and left facial recognition systems out of their RFP.

See detailed Grits coverage of DPS' biometrics proposals here, here, and here.