This post has been authored by Sangh Rakshita
In Greek mythology Argus Panoptes was a many-eyed, all-seeing, and always awake, giant whose reference has been used to depict an imagery of excessive scrutiny and surveillance. Jeremy Bentham used this reference when he designed the panopticon prison where prisoners would be monitored without them being in the know. Later, Michel Foucault used the panopticon to elaborate on the social theory of panopticism where the watcher ceases to be external to the watched, resulting in internal surveillance or a ‘chilling’ effect. This idea of “panopticism” has gained renewed relevance in the age of digital surveillance.
Amongst the many cutting edge surveillance technologies being adopted globally, ‘Facial Recognition Technology’ (FRT) is one of the most rapidly deployed. ‘Live Facial Recognition Technology’ (LFRT) or ‘Real-time Facial Recognition Technology’, its augmentation, has increasingly become more effective in the past few years. Improvements in computational power and algorithms have enabled cameras placed at odd angles to detect faces even in motion. This post attempts to explore the issues with increasing State use of FRT around the world and the legal framework surrounding it.
What do FRT and LFRT mean?
FRT refers to the usage of algorithms for uniquely detecting, recognising, or verifying a person using recorded images, sketches, videos (which contain their face). The data about a particular face is generally known as the face template. This template is a mathematical representation of a person’s face, which is created by using algorithms that mark and map distinct features on the captured image like eye locations or the length of a nose. These face templates create the biometric database against which new images, sketches, videos, etc. are compared to verify or recognise the identity of a person. As opposed to the application of FRT, which is conducted on pre-recorded images and videos, LFRT involves real-time automated facial recognition of all individuals in the camera field’s vision. It involves biometric processing of images of all the passers-by using an existing database of images as a reference.
The accuracy of FRT algorithms is significantly impacted by factors like distance and angle from which the image was captured or poor lighting conditions. These problems are worsened in LFRT as the images are not captured in a controlled setting, with the subjects in motion, rarely looking at the camera, and often positioned at odd angles from it.
Despite claims of its effectiveness, there has been growing scepticism about the use of FRT. Its use has been linked with misidentification of people of colour, ethinic minorities, women, and trans people. The prevalent use of FRT may not only affect the privacy rights of such communities, but all those who are surveilled at large.
The Prevalence of FRT
While FRT has become ubiquitous, LFRT is still in the process of being adopted in countries like the UK, USA, India, and Singapore. The COVID-19 pandemic has further accelerated the adoption of FRT as a way to track the virus’ spread and to build on contactless biometric-based identification systems. For example, in Moscow, city officials were using a system of tens of thousands of cameras equipped with FRT, to check for social distancing measures, usage of face masks, and adherence to quarantine rules to contain the spread of COVID-19.
FRT is also being steadily deployed for mass surveillance activities, which is often in violation of universally accepted principles of human rights such as necessity and proportionality. These worries have come to the forefront recently with the State use of FRT to identify people participating in protests. For example, FRT was used by law enforcement agencies to identify prospective law breakers during protests in Hong Kong, protests concerning the Citizenship Amendment Act, 2019 in New Delhi and the Black Lives Matter protests across the USA.
Vociferous demands have been made by civil society and digital rights groups for a global moratorium on the pervasive use of FRT that enables mass surveillance, as many cities such as Boston and Portland have banned its deployment. However, it remains to be seen how effective these measures are in halting the use of FRT. Even the temporary refusal by Big Tech companies to sell FRT to police forces in the US does not seem to have much instrumental value – as other private companies continue its unhindered support.
Regulation of FRT
The approach to the regulation of FRT differs vastly across the globe. The regulation spectrum on FRT ranges from permissive use of mass surveillance on citizens in countries like China and Russia to a ban on the use of FRT for example in Belgium and Boston (in USA). However, in many countries around the world, including India, the use of FRT continues unabated, worryingly in a regulatory vacuum.
Recently, an appellate court in the UK declared the use of LFRT for law enforcement purposes as unlawful, on grounds of violation of the rights of data privacy and equality. Despite the presence of a legal framework in the UK for data protection and the use of surveillance cameras, the Court of Appeal held that there was no clear guidance on the use of the technology and it gave excessive discretion to the police officers.
The EU has been contemplating a moratorium on the use of FRT in public places. Civil society in the EU is demanding a comprehensive and indefinite ban on the use of FRT and related technology for mass surveillance activities.
In the USA, several orders banning or heavily regulating the use of FRT have been passed. A federal law banning the use of facial recognition and biometric technology by law enforcement has been proposed. The bill seeks to place a moratorium on the use of facial recognition until Congress passes a law to lift the temporary ban. It would apply to federal agencies such as the FBI, as well as local and State police departments.
The Indian Scenario
In July 2019, the Government of India announced its intentions of setting up a nationwide facial recognition system. The National Crime Bureau (NCRB) – a government agency operating under the Ministry of Home Affairs – released a request for proposal (RFP) on July 4, 2019 to procure a National Automated Facial Recognition System (AFRS). The deadline for submission of tenders to the RFP has been extended 11 times since July 2019. The stated aim of the AFRS is to help modernise the police force, information gathering, criminal identification, verification, and its dissemination among various police organisations and units across the country.
Security forces across the states and union territories will have access to the centralised database of AFRS, which will assist in the investigation of crimes. However, civil society organisations have raised concerns regarding privacy and issues of increased surveillance by the State as AFRS does not have a legal basis (statutory or executive) and lacks procedural safeguards and accountability measures like an oversight regulatory authority. They have also questioned the accuracy of FRT in identifying darker skinned women and ethnic minorities and expressed fears of discrimination.
This is in addition to the FRT already in use by law enforcement agencies in Chennai, Hyderabad, Delhi, and Punjab. There are several instances of deployment of FRT in India by the government in the absence of a specific law regulating FRT or a general data protection law.
Even the proposed Personal Data Protection Bill, 2019 is unlikely to assuage privacy challenges arising from the use of FRT by the Indian State. The primary reason for this is the broad exemptions provided to intelligence and law enforcement agencies under Clause 35 of the Bill on grounds of sovereignty and integrity, security of the State, public order, etc.
After the judgement of K.S. Puttaswamy vs. Union of India (Puttaswamy I), which reaffirmed the fundamental right to privacy in India, any act of State surveillance breaches the right to privacy and will need to adhere to the three part test laid down in Puttaswamy I.
The three prongs of the test are – legality, which postulates the existence of law along with procedural safeguards; necessity, defined in terms of a legitimate State aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them. This test was also applied in the Aadhaar case (Puttaswamy II) to the use of biometrics technology.
It may be argued that State use of FRT is for the legitimate aim of ensuring national security, but currently its use is neither sanctioned by law, nor does it pass the test of proportionality. For proportionate use of FRT, the State will need to establish that there is a rational nexus between its use and the purpose sought to be achieved and that the use of such technology is the least privacy restrictive measure to achieve the intended goals. As the law stands today in India after Puttaswamy I and II, any use of FRT or LFRT currently is prima facie unconstitutional.
While mass surveillance is legally impermissible in India, targeted surveillance is allowed under Section 5 of the Indian Telegraph Act, 1885, read with rule 419A of the Indian Telegraph Rules, 1951 and Section 69 of the Information and Technology Act, 2000 (IT Act). Even the constitutionality of Section 69 of the IT Act has been challenged and is currently pending before the Supreme Court.
Puttaswamy I has clarified that the protection of privacy is not completely lost or surrendered in a public place as it is attached to the person. Hence, the constitutionality of India’s surveillance apparatus needs to be assessed from the standards laid down by Puttaswamy I. To check unregulated mass surveillance through the deployment of FRT by the State, there is a need to restructure the overall surveillance regime in the country. Even the Justice Srikrishna Committee report in 2018 – highlighted that several executive sanctioned intelligence-gathering activities of law enforcement agencies would be illegal after Puttaswamy I as they do not operate under any law.
The need for reform of surveillance laws, in addition to a data protection law in India to safeguard fundamental rights and civil liberties, cannot be stressed enough. The surveillance law reform will have to focus on the use of new technologies like FRT and regulate its deployment with substantive and procedural safeguards to prevent abuse of human rights and civil liberties and provide for relief.
Well documented limitations of FRT and LFRT in terms of low accuracy rates, along with concerns of profiling and discrimination, make it essential for the surveillance law reform to have additional safeguards such as mandatory accuracy and non-discrimination audits. For example, the National Institute of Standards and Technology (NIST), US Department of Commerce, 2019 Face Recognition Vendor Test (part three) evaluates whether an algorithm performs differently across different demographics in a dataset. The need of the hour is to cease the use of FRT and put a temporary moratorium on any future deployments till surveillance law reforms with adequate proportionality safeguards have been implemented.
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