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Forde Campbell's Kathy Mathews on facial recognition and our right to privacy

  • Facial recognition softwareIs there an antidote to privacy concerns?

    This controversial new weapon in the armoury of law enforcement agencies has already been piloted in some parts of the UK and is scheduled for further nationwide trials shortly.

    Facial recognition technology allows security agencies to identify and subsequently apprehend suspected law-breakers who are believed to have been able to evade capture and arrest. The software uses algorithms to match facial characteristics of pretty much anyone who happens to be in a public space against the extensive data already held by security forces. If it prevents crime then it has to be a good thing, surely? You can’t make an omelette without breaking eggs and no doubt ruffling a few feathers after all. Many security experts have championed this progressive application of what is still very novel technology, but more privacy-minded analysts harbour concerns about the implications for our basic liberties if this software becomes widely adopted without simultaneous privacy safeguarding measures being put in place.

    Let’s look at some of the competing views in the context of what we currently understand our right to privacy to look like.  

    The European Convention on Human Rights says that we (let’s leave the question of who ‘we’ might be if Brexit comes to pass for another time) are all entitled to respect for our private, family life, home and correspondence. Where does that leave us when we are outside of our homes or other private spaces, buying a pint of milk, or perhaps stepping out of our weekly Narcotics Anonymous meeting? Giving concrete answers to those questions is no easy feat, even for the Law Lords tasked with assessing the extent of Naomi Campbell’s right to privacy when she was doing just that.

    Lord Nicholls considered, however, that “photographs of people contain more information than textual description” and “are worth a thousand words”, before concluding that the innocuous pictures of the celebrity, who was well versed in the world of gossip columnists, added nothing to the substance of her complaint. Nevertheless, if a mere photograph is worth a thousand words, what would the equivalent value of a facial recognition scan be? Presumably a great deal more to law enforcement agencies keen to crack down on crime and secure unassailable convictions.

    Why is it, then, that some of those responsible for pioneering this type of software are calling for its deployment in the name of law enforcement to cease immediately? According to one facial recognition company CEO, Brian Brackeen of Kairos Inc., the margin for error is huge, and he has been outspoken in his view that the technology is simply not ready for this type of security-driven application. The significant number of false positive identifications using this software when Welsh police forces tested it at a local football match is alarming. One prison escapee was identified and re-incarcerated, however, so does the one true positive make up for the hundreds of inaccurate results? 

    Going back to the Campbell case, it is important to revisit the question of consent. According to Baroness Hale, “the crucial difference [in Campbell’s case] is that [articles like the Mirror one branding Campbell a drug addict] are normally run with the cooperation of those involved. Private people are not identified without their consent. It is taken for granted that this is otherwise confidential information.” What of the spectators at the UEFA Champions League match in Cardiff? Had they provided their consent to be identified and categorised by a police algorithm that is exclusively responsible for branding them criminals, in many cases incorrectly?

    While giving people the option of withholding their consent to have their data captured in this way would be an immediate antidote to privacy concerns, for the software to have any effect it would need to be used surreptitiously. Any suspect would otherwise be able to evade capture by maintaining a low profile when the facial recognition scanners happened to be in use. An option to provide consent would, by tipping off the lawbreakers, completely defeat the purpose of using it to apprehend them in the first place.

    Perhaps the entire concept of consent needs to be re-visited in the context of the dawning of a new era of surveillance capitalism. Given that every click of a mouse, character typed on a keyboard and ‘like’ on a smartphone is logged, categorised and made the subject of myriad algorithms designed to process and predict our behavioural patterns, perhaps the switch to physical logging is not such a far cry from the information we are already in the business of frequently and happily handing over on a daily basis.

    There seems to be no easy answer to this question of automated biometric data collection versus an individual’s right to privacy. Particularly when from one country to the next there does not seem to be any consistent approach being adopted. For instance, the Puttaswamy Supreme Court judgment in India recognised the constitutional right to privacy in response to mass bio-metric data collection. Conversely, the United States are not so willing to uphold privacy violation complaints specific to this type of software, as a group of Google users discovered to their detriment in the 2018 decision in Rivera vs. Google that related to Google’s photo sharing and storage service.

    Given the lack of international harmonization at common law it does not look as though we will have an answer to this conundrum any time soon. Perhaps it is simply safe to say that, insofar as the measures that need to be adopted to ensure that Orwellian-era state-sanctioned infringement does not go unchecked, the conversation is only just beginning.   

    Forde Campbell LLC is a niche commercial law practice, with a specialism in media and IP law, that offers its clients unparalleled expertise in the areas of reputation management, privacy, data and brand protection. Kathy Mathews is a privacy and defamation law expert specialising in media litigation including online takedowns and pre and post publication advice, specifically tailored to each of her clients’ individual requirements.

    About the author

    Tina Lauro Pollock is the editing eye at Sync NI and looks after its clients. She has a particular interest in the gaming sector, big data, women in tech and business, and start-ups. To connect with Tina, feel free to seek her out on Twitter, find her on LinkedIn, or schedule a chat by sending her an email.

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