Has anyone ever looked at your face and mistaken you for someone else?

If so, and if you live in California, you could be a victim of a proposal by the California Department of Motor Vehicles which is now under consideration in the state legislature.

At a hearing yesterday (May 13, 2009) before the Assembly Budget Subcommittee No. 5 on Information Technology/Transportation, the Director and Chief Information Officer of the DMV pleaded for more money (in spite of the desperate state budget crisis) to hire a contractor to digitize and store the photographs taken for every California drivers license or state ID, and then use “biometric” facial recognition and matching software to compare each new photo of an applicant for a license or ID with every photo in the database. (The DMV proposal next goes before the Senate Budget Subcommittee No. 2 on Resources, Environmental Protection, Energy and Transportation on Wednesday, March 20th.)

If the computer thinks your picture looks like any other picture in the database, both you and the other person whose photo the robot thinks looks like yours would be placed under suspicion of fraud, identity theft, or worse.

DMV officials were hard-pressed to explain what exactly would happen to such people once the robot places them under a cloud of suspicion. Presumably, issuance of their drivers license or ID (or the validity of their current license or ID) would be delayed, inhibited or suspended.  That means not just being unable to drive but (under the TSA’s new practices of requiring ID to fly) not being able to fly, and not being able to travel by Amtrak even on routes entirely within, and funded by, the state of California.

Even if you are given a temporary paper license that’s valid to drive, an ID without a photograph is unacceptable to the TSA to fly, or for any other “Federal” purpose.

Delay, denial, or revocation of a permanent photo ID or drivers license is not merely a “credentialing” decision but a de facto decision to deny you permission to travel: to drive, to fly, to take trains, or to carry out any of the increasing number of activities of daily life for which government agencies at all levels have made possession of a state-issued ID credential a prerequisite.  The administrative decision to deny, delay, or revoke a state ID thus needs to be treated as, and subject to the same procedural standards and safeguards as, any other prohibitory administrative order forbidding you to exercise those protected rights of travel, movement, assembly, and association.

The DMV says suspected matches identified by the contractor’s software would be “investigated”, but they couldn’t tell us exactly who would do the investigating (the private contractor? the DMV? the state police?); what police powers of search, seizure, or interrogation they would have in that investigation; what rights the subjects of these investigations would have; what evidence would be considered; who would have the burden of proof; who would make the decisions; what would happen while decisions or appeals were pending; and what administrative due process and judicial review would be provided for their decision of whether you are the person you claim to be, or whether you are really the same person as someone else.

And how would you prove to a state agency that you are who you say you are, anyway?  In effect, innocent people falsely fingered as “matches” by the photo matching robot would be placed — by the DMV and its contractor — in the position of victims of identity theft, with all of their same nightmarish and Kafkaesque problems.

How many people would be affected by these “false positive” matching results?  We were able to derive some estimates from the figures given by DMV officials at the Assembly budget hearing.  According to them, California issues approximately 8.5 million drivers licenses and state IDs each year. When the same contractor deployed the same image matching software in Pennsylvania, roughly 10% of the photos of new and renewal ID applicants were flagged by the system as “matches” with photos of other people in the database. The more photos in the database, of course, the greater the chances that any given new photo will be deemed similar to one of them. But even the same 10% match rate in California would mean 850,000 “hits” each year.

In response to questions by Assembly budget subcommittee members, the DMV spokespeople said that the image matching software was “70-90% reliable”.  That would leave the other 10-30% of the suspected matches, or 85,000-255,000 per year, as “false positives”.  Since in each case of a false positive match two innocent people are placed under suspicion — the one applying for a new or renewal license or ID, and the person whose photo in the database looks similar — that would mean between 170,000 and more than half a million entirely innocent Californians placed under suspicion and investigation of fraud, by a state agency, every year, for no other reason than that a robot can’t tell the pictures of their faces apart!

Nothing in current law authorizes the DMV to deny you a license or ID because they can’t tell your photo apart from someone else.  Drivers license and ID photos are notorious for being unrecognizable anyway.  We don’t think California needs a new law denying licenses or IDs to “lookalikes”, especially not on the basis of decisions by a private contractor’s proprietary software.

But if that’s what the DMV wants, they need to be honest about it, and propose appropriate legislation to establish such a system of administrative sanctions, to define the criteria and standards for them, to assure that those who are potentially subject to such administrative sanctions are afforded substantive and procedural rights commensurate with the gravity of the rights whose exercise is conditioned on possession of state ID, and to plan for the inevitable hundreds of thousands of false positive matches of innocent people that the system will kick out every year.  This is a substantive policy issue, not just a budget matter.

And if you’re in California, and that’s not what you want, you should tell your Assembly members and Senator not to fund or authorize automated biometric matching, or maintenance of facial or other biometric databases, by the DMV or its contractors.