FRT has been deployed in numerous circumstances, most notably at airports for security checks, mobile phones for locking and unlocking it, entry and exit of important governmental and official complexes, etc.

 

Facial recognition Technology (FRT), in simple terms, is a technology used to determine the identity of a person based on his/her facial features. The system uses a snapshot of a person’s face taken from a picture or video of the person and maps out certain markers on the face such as distance between the two eyes, distance between the forehead and chin, texture of skin, to name a few. There are some FRT systems which use more than 68 markers on the face to map out unique facial features. This, taken together, becomes that person’s unique facial signature. This unique facial signature is matched with the database available with the person/organization/agency looking to match the unique facial signature and a result is arrived at.

FRT has been deployed in numerous circumstances, most notably at airports for security checks, mobile phones for locking and unlocking it, entry and exit of important governmental and official complexes, religious places of worship and police and other security agencies, to name a few.

The government of various countries amidst the outcry of the recorded and potential misuse of the FRT, has continued to deploy it for security purposes. Recently, the Delhi police, using FRT, was able to identify and locate about 3,000 missing children in a matter of four days, which would have been unlikely otherwise. The US security agencies routinely deploy FRT to avert and nullify security threats.

While government agencies and other organisations cite its usefulness in averting imminent danger and identifying culprits or criminals, it raises a lot of concern in the light of civil liberties and privacy. Civil liberties champions and NGOs are raising their voice to sensitise people as to how their privacy at stake but in India the debate is yet to become mainstream.

There is no policy paper or white paper that has been issued by the government in this regard. Information Technology Act, 2000 (IT Act) is the main act governing such issues in India and makes no mention of FRT or its regulation. Even the rules issued under the IT Act make no mention or even a passing reference to FRT. There is no specific law dealing with this new technological development and the ripple effects it will have on governance and privacy. In fact, there is no specific law dealing with data and privacy itself.

Yet governments at the Centre and States are forging ahead. As recently as June 2020, the National Crime Records Bureau, a body under the Central government released tenders seeking proposals from private entities to deploy Automated Facial Recognition System, which will be used by state police forces. As mentioned earlier, the Delhi Police had deployed FRT to track missing children and has been touted as a stupendous achievement. A similar facial recognition technology is used by Telangana Police by the name “Darpan”. Kailash Satyarthi, the Nobel Laureate and his organization, Bachpan Bachao Andolan, teamed up with IT major, Capgemini and launched an app called “Reunite”, which will use FRT and track down missing children. The state of Telangana in January 2020 announced that it would be using FRT to monitor civic polls and weed out bogus voters.

One cannot help but wonder if this is not in blatant disregard of the landmark Puttaswamy judgement by the Supreme Court of India (Privacy Judgement) which made right to privacy a fundamental right even in public spaces. The Privacy Judgement clearly enunciated that “While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.” This act of violation of the order of the highest court of the land is not the only alarming aspect of this. Also, worth noting is the fact that, there is no law in place to govern the collection, storage and processing of the collected data through FRT. With absolutely no legal or statutory safeguards in place, the government of the day has let left open a field that allows it surveillance of its citizens, by not only state agencies but also private players—both Indian and foreign. One cannot help but wonder if left unregulated how dangerous and invasive this technology can be.

Clearly, FRT is an invasion of privacy where the surveillance is carried out without the consent or the intimation of the person in the camera. There are no laws in place to determine the scope of the usage of the data being collected. There is no overarching authority overseeing these surveillance activities. The technology itself is not foolproof as evidenced by various research conducted by independent policy bodies and think tanks one of the seminal ones being the one conducted by MIT.

Even though a total ban in the form of a moratorium for a few years till the time the law and related infrastructure catches up with FRT is not a bad idea, but may be a regulated approach towards FRT is the way forward considering the alacrity of the private and state players to get on with it. Certain steps may be taken to ensure that basic checks and balances are in place before the usage of FRT spirals out of control;

A statutory framework defining the contours and usage of the scope of FRT is the first and most essential step.

An overarching authority to monitor the usage of FRT by government authorities and the deployment of FRT and use cases should meet the test of proportionality as laid down in the Privacy Judgement.

Independent third party think tanks should be allowed to conduct audits and release reports in the public domain.

Only those private parties should be allowed to deploy FRT who are registered with authorized government body.

When surveillance being carried out at public places, people should be informed of the same through easily visible sign boards and notices.

Majid Durrani is a lawyer and a graduate from National Law Institute University.