By Ayushi Mishra, Ist year B..A. LLB. (Hons.) student at RMLNLU, Lucknow.

Introduction

In an age of rapid development, technology is increasingly becoming part of our lives. The advent of facial recognition technology has added to our convenience. Advances in artificial intelligence, machine learning, accuracy and the faster processing of vast amounts of data have led to its widespread adoption. It can be used to unlock phones, pay bills, and for other commercial and law enforcement purposes. However, it brings along a host of privacy and security concerns.

Facial Recognition Technology (FRT) and its working:

Facial recognition is a biometric authentication that identifies people as per their physiological aspects or facial features, like the distance between eyes, depth of eye sockets, and the nose’s width. This information also includes an individual’s unique facial features called the facial signature. This is used to compare an individual to a database of other known faces for law enforcement or commercial purposes. In addition, FRT can capture individuals in real-time, irrespective of a crowd or the use of masks. Many systems also analyse facial expressions from static images and videos to reveal emotions and feelings. According to market research firm Mordor Intelligence, the industry was worth about $3.7 billion in 2020 and is projected to grow about $11.6 billion by 2026.

The Rapid Growth of FRT:

China is the first country to develop the world’s most extensive facial recognition system and deploy it on the public. Initiated in the name of preventing crime and convenience, FRT is now being used for increased surveillance and control. There are facial recognition cameras in malls, residential complexes, offices, and even public bathrooms, monitoring the everyday life of the citizens. Other countries are also testing the use of FRT, which has gained much prominence amongst the law enforcement agencies worldwide. Countries like Singapore, Russia and UAE are using the FRT extensively. At the same time, systems using facial recognition technology are being banned in many cities of the US, including San Francisco. Leading Silicon Valley

companies like Microsoft, Amazon and IBM have refused to roll out their FRT to police without regulation.

Many security agencies claim that they use FRT to monitor security threats and anticipate terror activities, however, it must be noted that the capabilities of this technology are far more extensive. A game-changer in this field is Clearview AI, a US-based FRT company. According to the app designed by it, after taking a picture of any random person and uploading it, we can get to see their private photos, along with links to their presence on social media. The app uses a database of more than three billion images taken from Facebook, YouTube and other websites. While Clearview claims that its software is for security purposes of democratic governments, many reports say that the company attempted to sell it to various autocratic countries. According to the company, more than 2000 law enforcement agencies have started using Clearview.

Threatening aspects of FRT

With CCTV cameras in every street nowadays, it is impossible to cross a road without surveillance. This rampant, unregulated and unlimited use of FRT raises significant privacy concerns. In addition, according to various civil rights groups, it embodies various racial biases and often tends to deliver false matches for people of other gender, race and colour. Hence, many privacy activists fear its misuse against vulnerable groups and to penalise critics by authoritarian governments. It cannot be denied that FRT monitors and collects individuals’ data without their consent and knowledge. Moreover, they have often been used to identify and categorise govt. critics and protestors. According to a study, more than 117 million adults in the USA have been recorded in police facial recognition databases. During Hong Kong and Black Lives Matter protests, the law enforcement agencies in both countries used FRT to identify and      penalize protestors.

The right to privacy is recognised and guaranteed to individuals according to the International Covenant for Civil and Political Rights’ Article 17 and the Universal Declaration of Human Rights’ Article 12, along with protection of the law against wrongful interference. Hence, the processing of FRT data and its ownership needs to be scrutinised worldwide as people are now facing unregulated surveillance for law enforcement and commercial purposes. A significant example of this is China’s Orwellian social credit system that monitors each aspect of its citizens’ lives, judging their behaviour and trustworthiness with FRT as its backbone. Under

this system, good behavior like abiding by the law, punctuality, etc., are rewarded. In contrast, bad behavior like violation of traffic rules, jaywalking, misbehavior, non-paying of taxes etc., can result in losing basic rights like booking a flight or train ticket. According to various human rights activists, the system is being used to monitor and cripple journalists and critics of the govt.

Facial recognition in India

In India, a lawsuit was filed in Telangana in 2021, the state using the most facial recognition systems, challenging its constitutionality and usage. According to a report by Amnesty International, the state is the most surveyed place in the world. Furthermore, the Indian government recently approved the National Automated Facial Recognition System, designed and developed by NCRB (National Crime Records Bureau). According to the officials, the system aims to bolster security and find missing children. It is proposed to be integrated with various criminal and other schemes’ databases. The law enforcement agencies are now frequently using FRT. It was used for several arrests during the farmer protests and the protests against the controversial CAA law. Furthermore, the FRT is also being used by Indian Railways and airports.

The Supreme Court of India in the historic Puttaswamy judgement , recognised the right to privacy as a fundamental right guaranteed under Article 21 of the Constitution of India. The verdict mandated the requirement of consent for data collection. The court noted that any law which infringes upon the right to privacy, like collecting personal data for the purpose of law enforcement or national security, should meet certain standards and pass the proportionality test, i.e., there must be a legitimate goal, a degree of proportionality between the object and the means to achieve the same, along with procedural safeguards. However, FRT harms the privacy of individuals and collects data without their consent. It also hampers the individuals from exercising the liberty to share their data in some contexts and remain anonymous in others. As the govt. is planning to widen its ambit by integrating it with the AADHAR and other welfare schemes, we must remember that India lacks a data protection legislation that would mandate crucial safeguards in the collection and storage of user data. Its absence can lead to misuse of FRT, and the citizens will have no recourse against rampant data collection and unwanted surveillance.

Conclusion

The fundamental rights should never be a trade-off for security and commercial purposes. Since the misuse of FRT poses a significant threat to individual liberties, a line needs to be drawn between its implementation and the need for individual privacy to ensure its rational use by the government and commercial entities.

Therefore, this technology needs to be regulated worldwide, having comprehensive laws and adequate safeguards to penalise its arbitrary and irresponsible use. Adequate data protection laws are the need of the hour, along with clear policy mandates regarding the ownership, processing and destruction of the data gathered through the technology. Additionally, constant scrutinization and regulation of the FRT industry will ensure the technology’s safe and legal use throughout the world.