With Black Lives Matter protests hitting the streets in USA in light of George Floyd’s murder, questions regarding the use of facial recognition by police departments to identify protestors came to light. This follows a known pattern, where preceding protests in Hong Kong led to questions being raised regarding the use of Chinese state-backed facial recognition, coupled with a directive to ban the wearing of masks to safeguard privacy. In India, a glimpse of this was also seen during the Delhi riots that took over the early part of 2020. On this note, what has been uniformly underlined is the need to regulate facial recognition, and understand the thin line that breaches the privacy of a common man.
Highlighting these factors and much more, on June 25, senators in the United States of America proposed a new legislation that aims to prevent the police or any law-keeping body from using facial recognition technology under the guise of legal recourses. Filed by senators Ed Markey and Jeff Merkley, the Facial Recognition and Biometric Technology Moratorium Act is calling for a full ban on the use of facial recognition technologies by the government and government bodies. This injunction of sorts aims to remain in place until proper legislation safeguarding privacy and human rights – as well as stringent levels of data protection – are brought up. The moratorium will supposedly be lifted once the US Congress passes a bill years later allowing it, and as per the proposal of the senators, any federal agency in USA still proceeding to use facial recognition will not receive grants from the centre to function.
Relevance, now more than ever before
The move is particularly relevant at this time, when technologies such as facial and voice recognition are allegedly being used to identify protesters across the world. On June 15’s episode of Last Week Tonight, host John Oliver stated that almost half of America’s population have likely had their faces indexed or searched for by USA’s law enforcement agencies. This coincides with reports raising questions on how racial profiling may be an inherent part of today’s facial recognition technologies – Amazon’s alleged racial bias in its system come up in recent memory. Compounding the misery, a startup called Clearview AI – that rose to notoriety with its severely privacy-ending facial recognition tool sourced to the police – did not even seem to have a legal clause that would stop it from scraping faces off public domain photos and throwing them into a surveillance data system.
Taking cue from the recent discourse, on June 9, IBM stated that it will exit the facial recognition business. In the letter declaring so, CEO Arvind Krishna said that as an organisation, IBM will “not condone" any technology that enables mass surveillance and racial profiling to violate fundamental human rights. Soon after, Microsoft followed suit, enforcing a ban on selling its facial recognition technology to American police and other agencies. Amazon, which previously refused to stop selling the technology to the police by citing “sufficient" safeguards in its terms of service, has also announced a one-year moratorium on sourcing facial recognition to the police.
A reverse-China precedent
This is of particular importance, as it shows that USA, which often leads discussions on new technologies, is understanding the side-effects of using facial recognition for legal purposes, and may be prepared to lean away from it. The first notion of this had come up when the European Union had discussed a possible blanket ban on all facial recognition usage in public spaces, before scrapping it – apparently due to the Covid-19 pandemic. But, in a world where China, the world’s most populous nation, has enforced what is being referred to as a ‘social credit score’, this move is significant. In fact, this can form a precedent that might define how India would look at facial recognition in the near future.
A November 2019 documentary titled ‘China: Power and Prosperity’ by PBS NewsHour illustrated the plight of individuals living in a surveillance state such as China. In the documentary, Jessica Tan, co-CEO of one of China’s main facial recognition technology suppliers Ping An, revealed how the entire model of facial recognition in China has been built from the ground-up to recognise minute details, such as micro-expressions on a person’s face to detect driving discipline, or even straight-up face recognition to detect bad social behaviour, such as jaywalking. People noted to be in breach are then publicly shamed, to promote ‘good behaviour’. This sets an ominous note on the overall scheme of things when it comes to facial recognition – one which India should be careful to avoid.
What this means for India
In India, the Advanced Facial Recognition Software (AFRS), developed by private firm INNEFU Labs, has been in use with the police for over two years. In a previous News18 report, it was revealed that the technology was initially procured to identify and track missing children and women, in a bid to tap into human trafficking rackets in Delhi. However, this technology soon developed into a full-fledged law enforcement tool, and Union Home Minister Amit Shah revealed in March 2020 that over 1,100 faces were identified using this tool as perpetrators of the violent riots that broke out in Delhi in early 2020.
However, such use of the technology has seen considerable protest and backlash from communities such as lawyers and privacy overseers. In a previous interview with News18, N.S. Nappinai, cyber law advocate at the Supreme Court of India, had stated that there are no laws that govern the use, data capture and storage of facial recognition and related assets in India. Worryingly, despite not having a legal framework to back it up, New Delhi has already appeared among the top 20 most surveilled cities in the world, as per a market survey by Comparitech.
In hindsight, USA’s ruling does not particularly ‘mean’ anything directly for India. Right now, India does not have a legal framework in place for enabling or restricting facial recognition, which is what puts the onus more on the government to proceed in this avenue with extra caution. It is important to note that US lawmakers are pushing to ban use of facial recognition during a turbulent time due to the lack of enough legal framework, and not enabling it. Whether India goes down this road, or follows one that is closer to China, would be the most critical deciding factor behind India’s stance on fundamental human rights of freedom and privacy. With strong anti-China sentiments sweeping the nation in light of the Galwan Valley clash, it is important that we reserve the same sentiments when it comes to facial recognition, too.
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