delhi police facial recognition use

We Need to Ban Facial Recognition Altogether, Not Just Regulate Its Use

With automated electronic surveillance systems, suspicion does not precede data collection but is generated by the analysis of the data itself.

The Delhi police reportedly used automated facial recognition software (AFRS) to screen the crowd during Prime Minister Modi’s election rally in Delhi last December. This was also the first time Delhi police used facial images collected across protests in Delhi to identify protesters at the rally.

New categories of deviance such as ‘habitual protesters’, and ‘rowdy elements’ have emerged as faces of protesters are matched against existing databases and maintained for future law enforcement. Police departments in a growing number of states also claim to be using facial recognition and predictive analytics to capture criminals. The Railways intends to use AFRS at stations to identify criminals, linking the AFRS systems to existing data bases such as the Criminal Tracking Network.

Also read: Is Delhi Police’s Use of Facial Recognition to Screen Protesters ‘Lawful’?

The Telangana State Election Commission is considering using AFRS to identify voters during the municipal polls in Telangana. The home ministry recently announced its intention to install the world’s largest AFRS to track and nab criminals. AFRS adds to growing list of surveillance systems already in place in India, such as NATGRID and the Central Monitoring System, even while there continues to be little publicly available information about these programs. A recent study by Comparitech, places India after China and Russia in terms of surveillance and failure to provide privacy safeguards.

Automated facial recognition systems are a direct threat to the right to privacy. Unlike CCTV cameras, they allow for the automatic tracking and identification of individuals across place and time. Footage from surveillance cameras can be easily cross-matched, and combined with different databases, to yield a 360-degree view of individuals. As facial recognition systems combine constant bulk monitoring with individual identification, anonymity is further rendered impossible – there is no protection, or safety, even in numbers.

CCTV cameras, surveillance, Uttar Pradesh

Unlike CCTV cameras, facial recognition systems allow for automatic tracking and identification of individuals across place and time.

But much more is at stake than individual privacy.

AFRS can have a chilling effect on society, making individuals refrain from engaging in certain types of activity for fear of the perceived consequences of the activity being observed. As Daragh Murray points out, this chilling effect results in the curtailment of a far greater set of rights, such as the freedom of expression, association, and assembly. Taken together, this can undermine the very foundations of a participatory democracy.

With AFRS and other automated electronic surveillance systems, suspicion does not precede data collection, but is generated by the analysis of the data itself. To avoid suspicion, people will refrain from certain types of activity or expression; and the worry or threat, of not knowing what data is being collected or how it is being combined and analysed, can result in the self-censorship of a wide range of activities. Such surveillance, as Christian Fuchs points out, first creates a form of psychological and structural violence, which can then turn into physical violence.

Further, because surveillance operates as ‘a mechanism of social sorting’, of classifying individuals based on a set of pre-determined characteristics, and their likelihood of posing a risk to society, the chilling effect is likely to be experienced more severely by already discriminated against communities. Such social sorting is further likely to exacerbate identity politics in India, enforcing and exacerbating social divisions.

This is also why critiques of AFRS that point to their low accuracy rates or failure to identify certain skin tones miss the point entirely. A more effective system would pose an even greater threat to privacy, social sorting, and participatory democracy.

Much of the criticism around the deployment of AI-based technologies has highlighted issues of discrimination and exclusion; and how this can result in the violation of human rights. But the case of AFRS shows how AI systems can not only result in the violation or loss of rights, but are also productive of certain types of behaviour – creating a disciplinary society.

Further, because chilling effects is some sense rest on the occurrence of non-events – i.e not engaging in particular types of activities – frameworks based on identifying discrete violations of rights are likely to be inadequate. The case of AFRS thus highlights how conversations around AI governance need to move beyond the identification of immediately visible harm, at an individual level, to ask what kind of transformations are taking place at a structural level – how values of privacy, liberty, democracy and freedom are being recast.

Also read: India Is Falling Down the Facial Recognition Rabbit Hole

In India, as elsewhere, surveillance technologies have entered the public domain through a narrative of both safety and protection; and, consumer convenience and personalisation. The rhetoric of safety, for example, is behind the recent allocation of the Rs. 250 crore from the Nirbhaya fund for the installation of facial recognition cameras at 983 railway stations across the country.

The Delhi Police has registered 10 criminal cases against those involved in rioting and arson during the Anti-CAA Protests. Photo: PTI

Automated facial recognition software earlier procured to trace missing children in the country, are now being used to sort and profile citizens dissenters and peaceful protesters. This shows the folly of searching for the good use-cases of AI. AFRS, like other surveillance techniques, are also being routinised and normalised through the promise of consumer personalisation and convenience – whether the embrace of facial recognition to unlock an iPhone or people voluntarily signing up for AFRS at airports.

Mark Andrejevic has argued, for example, that the ‘key to the creation of digital enclosures today is the emphasis that has been given to the technologies of liberation, in particular, mobile phones and social networking sites.’ This ‘domestication of the discourse of interactivity’ has been crucial for expanding the means of surveillance. As a result, as Lyon notes, references to an Orwellian dystopia are ‘rendered inadequate because of the increasing importance of nonviolent and consumerist methods of surveillance.’

With the various government ministries seeking to employ AFRS, many have called for regulating the use of AFRS – that the conditions of its use must be specified as well as the necessary judicial processes established. But, regulating its use is not enough. Even if AFRS were permitted in only a few select instances, or after due process has been followed, the chilling effect on democracy will remain.

At a more practical level, the effectiveness of AFRS requires the collection of biometric facial data from all individuals, not only the targets of surveillance, or those suspected for criminal activity. Selective use also contributes to normalisation and routinisation (and over time, even more effective AFRS). Let’s not forget that many surveillance technologies are first tested in the criminal system before they are deployed for the broader public.

Even with adequate legal safeguards, and perfectly accurate facial recognition systems, the harms to society far outweigh any possible benefits. We need to ban the use of AFRS all together – to establish this as a necessary red line to preserve the health and future of democracy. Even while effecting such political change may seem a far cry in the current political climate, it is urgent to start building at least a normative consensus within civil society.

Also read: Delhi Police Is Now Using Facial Recognition Software to Screen ‘Habitual Protestors’

This conversation has already started in other corners of the world – San Francisco has already banned the use of AFRS by the police and all municipal agencies and the EU is considering banning the technology in public spaces for five years. Neither go far enough – an even better example could be Portland, Oregon, which is considering banning the use of AFRS by both government agencies and private businesses. While India continues to lack any frameworks for the governance and regulation of AI-based technologies, the case of AFRS highlights how this is an urgent priority.

AFRS will soon be complemented by systems for emotion and gait recognition; technologies that detect heartbeat and micro-biomes are also under development. We need to act now: as these technologies become more embedded in not only governance systems but only consumer habits, there will be fewer opportunities for course correction.

Urvashi Aneja is co-founder and director of Tandem Research and tweets at @urvashi_aneja. Angelina Chamuah is a research rellow at Tandem Research.

Is Delhi Police’s Use of Facial Recognition to Screen Protesters ‘Lawful’?

The eventual legal answer may lie in whether there is a clear distinction between physical and virtual intrusion of privacy.

Protests have erupted across the country over the past two months, and with them, new methods to crack down on dissent.

The Delhi police, for instance, recently used Automated Facial Recognition Technology (AFRS) to screen crowds at political rallies against the Citizenship (Amendment) Act (CAA). The city’s law enforcement then compared this data with a pre-existing database of more than two lakh protestors it reportedly perceives as ‘antisocial elements’.

The use of AFRS has met with considerable ire of experts since it was not introduced through a legislation passed by parliament and that this renders it unlawful.

This criticism is based on the observations of the Supreme Court in the Puttaswamy case, which acknowledged that privacy is a fundamental right.

The plurality opinion, delivered by Justice D.Y. Chandrachud, laid down a three fold-test to impose reasonable restrictions on individual privacy.

Also Read: Delhi Police Is Now Using Facial Recognition Software to Screen ‘Habitual Protestors’

First, there must exist a law imposing the restriction (on privacy). Second, there must be a legitimate state aim that the law seeks to pursue; Third, there must be a rational nexus between the intended aim and the means (i.e. nature of restriction) adopted to achieve it.

However, from the judgment, it is not clear whether by using the word ‘law’ the judges meant only statutory law or even common law (derived from custom and judicial decisions common to courts across England and Commonwealth states).

If the interpretation of ‘law’ in the (Puttaswamy) three-pronged test includes non-statutory common law, an express statutory provision enabling surveillance through AFRS is not necessary and the Delhi Police could use AFRS in the absence of any parliamentary law enabling such use. Establishing that surveillance through AFRS is an exercise of powers derived from common law would be sufficient. Discerning the correct interpretation of ‘law’ is relevant since there is no express statutory provision enabling AFRS.

Supreme Court. Photo: PTI

A statutory provision which may be somewhere close to enabling the use of AFRS is section 31 of the Police Act, 1861, which creates a duty for the police to keep order on public roads, streets and resorts and to prevent any obstructions due to assemblies. Of course, it would be a stretch to argue that correlative to this public duty, there exists the power to use AFRS in streets in Delhi. Eventually, however, whether the power to use AFRS is implicit in this duty or not is a matter of judicial interpretation.

Similarly, it is true that the Criminal Procedure Code (CrPC, e.g. under section 165) grants police the power to conduct a warrantless search if it has reasonable grounds to believe that waiting to obtain a warrant would cause undue delay. Moreover, section 151 of the CrPC empowers the police to arrest without a warrant to prevent the commission of cognizable offences. However, it would be sweeping to suggest that the power to conduct warrantless search includes the use of AFRS indiscriminately on a public street.

Deriving power from common law

Interestingly, back in 2005, the Supreme Court in District Registrar and Collector, Hyderabad v. Canara Bank incidentally made an observation on the extent to which common law permits intrusion into someone’s privacy. The apex court, in this case, was concerned with a challenge to the constitutionality of a statute enabling the collector to authorise access to documents placed in the custody of a bank. In passing, the court acknowledged that restrictions on privacy can be imposed not only by statutory provisions but also in rare exceptional circumstances, administrative action deriving its powers from common law (“such as where warrantless searches could be conducted but these must be in good faith, intended to preserve evidence or intended to prevent sudden danger to person or property”). In fact, common law, according to a recent decision of the United Kingdom High Court (UKHC) in Edward Bridges v The Chief Constable of South Wales, enables the use of facial recognition technology by the police.

Before the UKHC, Edward Bridges, a civil liberties campaigner from Cardiff challenged the use of facial recognition technology to capture his images in two instances – first, at Queen Street, a busy shopping area; and second, when he was at an exhibition in the Motorpoint Arena at Cardiff. Edward’s claim in his suit inter alia was that the AFRS deployed by the South Wales Police had no statutory basis and was therefore not lawful.

The court, however, rejected this claim. It observed that a police constable’s obligations are non-exhaustive and include taking all steps necessary for the maintenance of peace and protection of property. The police need not express statutory powers to use CCTVs or AFRS for policing purposes. The power to use facial recognition technology is inherent in common law.

Police powers to conduct surveillance, however, do not authorise intrusive methods of obtaining information through entry upon private property. Interestingly, the UKHC distinguished between virtual intrusion and collection of biometrics (such as through AFRS) from physical searches (e.g. physical collection of fingerprints, DNA swabs, etc). While the former, according to the court, does not require enabling legislation, the latter needs to flow from statute since it would otherwise constitute a physically intrusive act (such as an assault).

The court’s logic is this: the use of AFRS does not involve any physical entry, contact or force necessary to obtain biometric data. It simply involves capturing images and using algorithms to match the image with a face on a watchlist or database. Taking of fingerprints, however, requires cooperation, or the use of force on the individual which would otherwise constitute assault; a physically intrusive act.

A DNA swab. Photo: Reuters/Michaela Rehle

A hierarchy between physical and virtual searches

In other words, the court creates a hierarchy between physical searches and virtual searches, characterising the former as more (i.e. physically) intrusive. This understanding of intrusion from AFRS deviates from the more liberal position adopted by the Supreme Court of the United States in Katz v. United States, where the court imposed similar conditions on both physical and virtual searches, i.e. the requirement to obtain a warrant before conducting the search.

Also Read: India Is Falling Down the Facial Recognition Rabbit Hole

Indian courts should reject the hierarchisation between physical and virtual intrusion if it has to consider the question of permissibility of facial recognition technology under common law, in the future. This is because virtual intrusion through AFRS-enabled CCTVs can be equally invasive. AFRS enabled-CCTV footages are different from ordinary CCTVs. Data from a series of AFRS-enabled CCTVs, if processed in conjunction, could reveal a series of movements of an individual, enabling long-term surveillance. Such surveillance would be qualitatively distinct from isolated observances across unrelated CCTV footages. For instance, a series of trips to a bar, a gym and a bookie or a church can reveal significantly more about a person than a single visit viewed in isolation.

The problem with common law forming the bedrock of surveillance is that it seriously undermines legitimacy and foreseeability of the extent of surveillance we can be subjected to.

This is particularly because law and order is a state subject and police practice varies across jurisdictions. To ensure that police use of AFRS is reasonably foreseeable and predictable, express statutory regulation which enables and regulates AFRS should be created. A proposed framework of this nature is the Facial Recognition Technology Warrant Act of 2019 introduced in the US. The Bill requires that sustained surveillance only be conducted for law enforcement purposes and in pursuance of a court order (unless it is impractical to do so). Combined with a robust data protection framework, such a framework would ensure some degree of predictability in its use.

Siddharth Sonkar is a final year student of the National University of Juridical Sciences (NUJS), Kolkata.