Federal law enforcement agencies have been using facial recognition technology to mine state driver's license databases for information, reports the Washington Post. The Federal Bureau of Investigation (FBI), the Transportation Security Administration (TSA), and Immigration and Customs Enforcement (ICE) simply email requests to state departments of motor vehicle registration, asking them to match suspects' faces with those collected and stored in their driver's license databases. Generally speaking, state bureaucrats have been happy to cooperate.

The Government Accountability Office recently revealed that the FBI can scan about 640 million pictures, including not just mugshots but driver's licenses and passport photos. At a congressional oversight committee hearing last month, Rep. Jim Jordan (R–Ohio) observed that many state's DMVs "have just given access to that to the FBI. No individual signed off on that when they renewed their driver's license, got their driver's licenses. They didn't sign any waiver saying, 'Oh, it's OK to turn my information, my photo, over to the FBI.' No elected officials voted for that to happen."

Well, maybe not, but compliance with federal Real ID requirements essentially means that state DMVs have been building a national digital identification database for federal law enforcement.

The Fourth Amendment of the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.

The vast majority of photos that the FBI, TSA, and ICE have been accessing depict Americans who have never been charged with a crime. Yet each time those agencies conduct a facial recognition search, all those Americans are treated as a suspect in the specific crimes that are under investigation.

Of course, much the same thing could be said of the FBI's fingerprint database, since nearly half of the records on file there are from non-criminal civilians. That database contains 145 million fingerprint records, including 77 million criminal suspect, 65 million non-criminal civil, and 3 million Repository for Individuals of Special Concern records. And the courts haven't objected to police searching those without anything like a warrant. So—keeping firmly in mind that I am not any sort of legal scholar—it seems likely to me that court precedents allowing police access to fingerprint databases will be applied to querying these growing faceprint databases.

The one area where we might be able to hold the line against a metastasizing surveillance state is to prohibit law enforcement use of real-time facial recognition technologies. Deploying such tech would essentially turn our faces into ID cards on permanent display to the police.