I recently wrote about the facial recognition apparatus now in use at an increasing number of airports and the reactions some privacy advocates were having to it. One of the chief complaints about this technology was the fear that the government would be storing and mining all of those airport photos for law enforcement use. Just as a reminder, this is what I wrote at the time while admitting that I was only wildly speculating.

“As for your digital privacy in a digital world, as I said above, I would be shocked beyond belief if there aren’t already multiple government image libraries containing the pictures of nearly everyone with a valid ID card. And even if they say they aren’t sharing them, I’d be equally shocked if there weren’t provisions in place to do so in an emergency. ”

This may be another one of those “I really hate it when I’m right” moments. According to the Washington Post, the FBI and ICE have already been busy mining all of those drivers license photos, though that fact apparently wasn’t revealed to the public.

Agents with the Federal Bureau of Investigation and Immigration and Customs Enforcement have turned state driver’s license databases into a facial-recognition gold mine, scanning through millions of Americans’ photos without their knowledge or consent, newly released documents show.

Thousands of facial-recognition requests, internal documents and emails over the past five years, obtained through public-records requests by Georgetown Law researchers and provided to The Washington Post, reveal that federal investigators have turned state departments of motor vehicles databases into the bedrock of an unprecedented surveillance infrastructure.

Police have long had access to fingerprints, DNA and other “biometric data” taken from criminal suspects. But the DMV records contain the photos of a vast majority of a state’s residents, most of whom have never been charged with a crime.

The article points out in terms suggestive of a scandal that these image searching procedures were set up not only without the consent of the individuals, but without the authorization of either Congress or the state legislatures. Elected officials of both parties are quoted as being disturbed by this. But it’s worth asking whether or not federal law enforcement really needs to get permission from either the federal or state legislatures before seeking evidence while investigating crimes.

As technology advances, law enforcement scrambles to try to keep up. We found out fairly recently that state law enforcement in California had been mining a DNA database when they finally tracked down the Golden State Killer. Not only did they not seek authorization from the legislature, but I don’t recall any serious debates over whether they should have or not.

In this case, I suppose there might be an argument about state versus federal rights when accessing data. Who “owns” the DMV image database in each state? All of the DMVs work in cooperation with the federal government in terms of what technology is or isn’t used in creating valid forms of identification. Even more to the point, it isn’t exactly made clear how ICE and the FBI were accessing the DMV files. Did they have a program allowing them to simply do a search without asking or were they submitting individual requests?

According to the article, the FBI has “logged” hundreds of thousands of facial-recognition searches of federal and local databases. But it also goes on to say that the feds “have forged daily working relationships with DMV officials.” Sounds to me as if the FBI and ICE submitted requests to the owners of these databases and those requests were granted. If you have a problem with the privacy angle of this process, it would seem that you should take it up with the DMV in your state, not the FBI.

But is this really a privacy question at all? When you go down to the DMV to renew your license or ID, you’re going to a public place and voluntarily having your picture taken. (Granted, you’re very restricted these days in many ways without a valid ID, but they can’t force you to get one.) That picture is part of a government record and any law enforcement officer who pulls you over on suspicion of breaking the law can demand to see your identification. So who really “owns” that image? You or the state?

These are complicated questions that will need to be sorted out going forward. But in the end, it all comes back to whether or not we see facial recognition technology as a valid tool of law enforcement or a sign of the police state haunting your every step.