Texas Is Now Taking a Full Set of Fingerprints for Driver's Licenses, but Is This Legal? (Plus, the Other States That Do It)

• A column in a Texas newspaper about the state requiring fingerprints for driver's license renewals sparked discussion about its legality last month. 
• The state has been authorized since the 1960s to require thumbprints, or index fingerprints, when thumbprints were not available. 
• Earlier this year, the state began collecting a full set of prints, causing some to worry about their possible use. 
• Privacy advocates balked at the legal argument presented by the state, but lawyers independent of the situation seem to back the legality of the requirement. 
• Several other states also require fingerprints to obtain driver's licenses.

Privacy advocates last month jumped on a story out of Texas when they learned that the state's Department of Public Safety was taking full sets of fingerprints as citizens renewed their driver's licenses.

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"Really. Quietly, earlier this year, the Texas Department of Public Safety began requiring full sets of fingerprints from everyone who obtains a new driver’s license or photo identification card. This applies to those who come in as required for periodic renewals, but it doesn’t apply to mail-in renewals," Dave Lieber wrote for the Dallas Morning News.

"Until now, if a person never got arrested, most likely his or her fingerprints would never get recorded and placed in a government database," Lieber continued in his "Watchdog" column.

The department has collected thumbprints — or index finger prints if thumbprints weren't available — since 1967, under Texas' Transportation Code 521.059. But earlier this year, it started collecting full sets of prints after funding for the expanded "image verification system" was approved by Texas legislature. A bill passed in 2005 said that "thumbprints or fingerprints" could be collected.

The department's reasoning to do so?

"Making sure an individual is who they claim to be in the process of issuing government identification is a critical safeguard to protecting the public against a wide array of criminal threats. One of the most accurate and simplest ways to do that is through fingerprints," a Texas Department of Public Safety representative told TheBlaze in an email.

Is It Legal?

Jon Cassidy, a writer for Watchdog.org, part of the limited-government nonprofit Franklin Center for Government and Public Integrity, questioned the legal basis for starting to collect full sets of fingerprints.

"Not only has the department made that momentous decision on its own, it doesn’t even have clear legal authority to do so," he wrote.

Cassidy isn't the only one who thinks the taking of a full set of fingerprints is illegal. After his original post, Lieber reported that a former Department of Public Safety employee had quit his job as a fingerprint technician for the state because he questioned the program's legality:

Ryan Barrett, 26, is a U.S. Army veteran who served in Iraq and then, after his honorable discharge, went to work at DPS on the overnight shift for a year processing fingerprints. But earlier this year, when DPS launched the policy without public announcement, Barrett says, he began asking his supervisors questions.

Is this legal? Where in the law is this permitted? Why is the state doing this?

When the answers were insufficient, he says that, along with his desire to leave the overnight shift, gave him reasons enough to resign. He’s back in school pursuing his education.

His main objection, he tells The Watchdog [blog], is that all fingerprints of Texans are now being run through the state’s criminal database. Barrett says he doesn’t believe a 2005 state law authorizes that.

Texas DPS, however, denied that it uses fingerprints obtained through driver's license offices to search criminal histories. This data, the department said, can only be accessed for "legitimate law enforcement purposes," an allowance that is also made in Transportation Code 521.059. These legitimate purposes include identifying the victim of a crime or disaster or to conduct an investigation of criminal conduct.

"The DPS’ 10-print fingerprint technology provides crucial protections to the state and our residents, including (1) reducing [driver's license]/ID card fraud by preventing duplicate or alias licensing; (2) preventing the DL/ID from being used fraudulently to obtain goods, services or other forms of identification; and (3) helping guard against identity theft, which affects millions of victims nationwide every year," a department representative told TheBlaze. "In addition, the transition to 10-print bolsters other DL processes in the overall licensing strategy to deter terrorists and other criminals from obtaining Texas DLs/IDs to support their covert movements within our country."

'States Have Every Right'

Legal experts defended the legality of required fingerprints in the licensing process.

"While many people may find it to be illegal, it's actually consistent with the Constitution, and states have every right to require it," said Jordan Perch from dmv.com, a website unaffiliated with state governments that seeks to make the DMV process less stressful for drivers.

"Since having a driver's license is a privilege, not a right, you must meet certain requirements before you can obtain one," Perch told TheBlaze. "States that require this ask you to sign a contract when you get your license, agreeing to submitting fingerprints. Basically, giving your fingerprints is the same as giving your signature or having your photograph taken when obtaining your license."

"There is no invasion of privacy, as some people claim, even though states are allowed to use prints for identification purposes, including in criminal investigations," he continued. "Privacy concerns are legitimate, though, as data [breaches] involving stolen fingerprints has much more serious consequences than stolen driver's license numbers, which can be easily changed. However, DMV's don't use customers' fingerprints to retrieve information from their private lives, and they only use them for identification purposes."

David Reischer, a lawyer for LegalAdvice.com, shared a similar stance.

"States have certain rights as the privilege of driving on state roads is not a right and requiring a fingerprint is a reasonable request for the state to mandate for all drivers to be granted a license," Reischer told TheBlaze in an email.

He did, however, pose several different ways that constitutional arguments could be made.

"It is possible that the Fourth, the Fifth and [Fourteenth] Amendments may be used to strike down such a state statute but no case has, of yet, been before the U.S. Supreme Court. The … Supreme Court may find that fingerprinting may not implicate the Fourth Amendment since it 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search,'" Reischer said. "However, there may be a more compelling argument under the Fifth and Fourteenth Amendments as in violation of 'due process' rights guaranteed by the U.S. Constitution."

Other states that require fingerprints for driver's licenses include California, Colorado, Georgia, Hawaii and Utah, Jordan said.

'Pushing the Envelope'

The bill that was used to expand the thumbprint or index fingerprint to a full set of prints in Texas, according to Lieber, was passed in 2005. Several of the bill's original co-sponsors declined to comment on its original tent, but Juan Escobar, a former representative for Kingsville, Texas,  said it was meant to "ensure that the individual was the right person that was applying for a driver’s license."

“If they’ve gone past the law, there’s nothing that gives them that authority," Escobar told Lieber.

Barrett, who quit his job with DPS, also argued against the department's stance that the automated fingerprint identification system is not run through criminal departments, telling Lieber that it will "also get stored with the crimes & records department."

"Everything is updated simultaneously," Barrett said. "AFIS does not work alone. Unfortunately for us, driver’s licenses are indeed considered retainable, and they stay in this system – they aren’t separate anymore, like they used to be before January 2014."

He also countered DPS' "blanket 'safety' statement."

"You can say the DPS is placing RFID chips in all driver’s license holders, and then justify it with the the same sentence [DPS spokesman] Tom [Vinter] used: that it stops fraud, combats terrorism and keeps people safe. In fact, I’m sure it probably would stop a little fraud, or some crime, but that doesn’t mean it is morally right, in line with the concept of citizens’ privacy or cost-effective," Barrett said. "You could search every single house in a city when a crime is committed and justify it with that statement, and yes, the police would probably find some crime or wrong-doing.  But again, that doesn’t mean it’s morally right, a protection of privacy, or cost-effective (or even just plain effective).

"If we assume that everything is legal because the statutes are so vague, I think the argument boils down to this:  Just because we can, doesn’t mean we should," Barrett continued. "For a state that prides itself on little government intervention into its resident’s lives, the DPS is pushing the envelope quite a bit."

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