Big Brother is watching—the impact of Facial Recognition Technology

Big Brother is watching you, no seriously. Facial Recognition Technology is no longer something dreamed up for sci-fi films but our daily reality. Whether you are doing your weekly shop at the supermarket, catching a flight at the airport, or simply unlocking your iPhone, Facial Recognition Technology is at play—without many of us realising it.

With the use of Facial Recognition Technology becoming more and more mainstream—such as being deployed in offices to avoid sign in queues and the complications with introducing it in ‘large-scale quasi or hybrid’ public spaces (for more on this issue see: LexisPSL: Private eyes—facial recognition technology in quasi-public spaces)—it is sure to be an interesting ride.

Have you ever stopped to think how many times your face has been captured by Facial Recognition Technology?

As reported by the Guardian, the UK is ‘the most spied upon county in the world’, with the Telegraph concluding that a Londoner’s image is captured at least 300 times a day by CCTV. Like it or not, this tech has already taken hold and has been integrated into industries such as the police force and even in health care.

In September this year, plans to develop a public facial recognition database sparked intense controversy. Further reports surfaced detailing that Google was targeting people based on their skin colour. Clearly there are many fears, challenges and barriers to be overcome—many of which we are still unaware of due to the technologies infancy.

Facial Recognition Technology lawful?

September also saw a landmark challenge over the Police use of Facial Recognition Technology to search for people in crowds. In the world’s first legal case of its kind, the High Court found the technology was being used lawfully.

The case follows the Metropolitan Police Service and South Wales Police ‘Live Facial Recognition’ trail, which uses this technology to identify wanted criminals.

The trial and the related legal challenges have thrown up many concerns, such as:

• potential inaccuracies with individuals’ profiles built by the technology
• questions around accountability
• inaccuracies over the technologies use for women and BAME subjects—leading to potential inherent bias in their decisions

In this instance, the High Court found that police use of facial recognition technology in this case was in fact legal. However, although the Metropolitan Police have stated that there has been clear transparency around their actions, , many have still remained concerned about the regulation surrounding the new technology.

Regulation

In the latest comments from Information Commissioner, Elizabeth Denham, she called for the government to introduce a statutory and binding code of practice on the deployment of facial recognition technology—warning that this technology requires urgent government regulation.

Surprisingly, in a recent LexisNexis interview with Julian Hayes, partner at BCL Solicitors highlighted that “at present, there is no dedicated FRT legislation or Code of Practice in the UK”.

Currently, as outlined by Hayes, the legalities of Facial Recognition Technology rely on a question of ‘who is using it and why’ and how this is affected by the Human Rights Act 1998, as well as considerations under the following:

• the European Convention on Human Rights (ECHR)
• the General Data Protection Regulation (EU) 2016/679 (GDPR)
• the Data Protection Act 2018 (DPA 2018)
• guidance produced by the Surveillance Camera Commissioner (SCC), which is applicable in England & Wales including the Surveillance Camera Code of Practice (SC Code)
• potentially by the ordinary law of confidence
• potentially by the Regulation of Investigatory Powers Act 2000 (RIPA) where the surveillance is covert

What does the future hold?

The future of Facial Recognition Technology is a hard one to predict.

With Brexit on the horizon, we approach further uncertainty regarding GDPR’s influence on regulation in Facial Recognition. This regards the future effects and provisions of the GDPR on Facial Recognition Technology. Though the government aims to incorporate GDPR compliance into domestic legislation—meaning that GDPR regulation would effectively continue post-Brexit, the current shifts and rate of change in the political sphere leave this eventuality unclear.

It remains to be seen what the government’s actions will be following the Information Commissioner’s suggestions from its investigation. However, with the issue of the first Information Commissioner’s Opinion on this matter we are likely to hear a response soon.

The future of Facial Recognition Technology looks to be an interesting one. So, we will wait patiently and ‘watch’ this space.