Convenience at the Expense of Privacy? The Need to Regulate Facial Recognition Technology

Innovations linked to the use of FRT seem to be endless. FRT is utilized for simple tasks such as unlocking a phone while wearing a mask or for streamlining more complicated processes such as airport checks. The Covid-19 pandemic also brought about the use of FRT to safeguard public health by using FRT to track Covid-19 infections. Against this backdrop, recent forecasts predict that the FRT market will be valued at $12.67 billion in 2028 from $ 5.012 billion in 2021, with the use of FRT in law enforcement and non-law enforcement applications to increase rapidly from 2021 to 2028. As of 2020, China and the United States lead the market in terms of funding FRT companies. Notably, in a report published by the U.S. Government Accountability Office (GAO) in August 2021, 16 out of 24 surveyed federal agencies reported using FRT for digital access or cybersecurity, and 10 of the 24 have plans to expand their use of FRT.

Significantly, public opinion on FRT is not consistent across all possible uses of the technology. For instance, in a recent survey, 59% of respondents from the United States found FRT use for law enforcement acceptable while only 36% of respondents trust the use of FRT by technology companies. Interestingly, only 86% of the respondents have heard about FRT, and only 25% have confirmed to have heard a lot about it.

The promise of convenience and efficiency comes with a price. The use of FRT is criticized because of the risks it poses to individual privacy and other fundamental rights. FRT can potentially be misused on individuals without their consent. Moreover, the possibility of inaccurate results, the lack of transparency, and the absence of due diligence of FRT are feared to bring about violations of human rights.

The use by States of FRT continue to spark controversies. For instance, China has resorted to the use of FRT to track and control Uyghurs and even detect changes in their behavior. While the use of FRT is praised for its ability to improve public safety, its use for law enforcement remains controversial. In New York City, it was found that more CCTV cameras which utilize FRT are stationed at neighborhoods with higher concentrations of non-white residents. Consequently, the disproportionate use of FRT is seen to reinforce discriminatory policing against minority communities.

There is no unified response to the growing complexities of FRT and the dangers lurking with its continued use.

In July 2021, China’s Supreme Court issued a judicial interpretation which set out guidelines for the use of FRT and the protection of individual privacy. However, the judicial interpretation provides for exemptions when FRT is used to respond to a public health emergency or for maintaining public security. Notably, China’s Personal Information Protection Law, which took effect on November 1, 2021, allows the installation of image collection or personal identity recognition equipment in public venues to safeguard public security. An individual’s separate consent is required only when the collected personal images and personal distinguishing identity characteristic information is used for a purpose other than safeguarding public security.

In contrast, several states and cities in the United States have banned government use of FRT. Currently, there is still no federal legislation governing the use of FRT. If the Facial Recognition and Biometric Technology Moratorium Act of 2021 becomes law, it will ban federal agencies and federal officials from using FRT unless explicitly authorized by an act of Congress. The bill also prohibits the use of information derived from FRT operated by another entity.

In October 2021, the European Parliament passed a non-binding resolution calling for strict democratic control and independent oversight of any AI-enabled technology in use of law enforcement and judicial authorities. It also called for a ban on the use of private facial recognition databases in law enforcement. Significantly, the proposed EU Artificial Intelligence Act specifies prohibited artificial intelligence practices and adopts a risk-based approach to regulate the use of artificial intelligence with varying risk categories. This would cover artificial intelligence used to power FRT.

In September 2021, the United Nations urged States to implement a moratorium on the use of artificial intelligence technology, which includes FRT, which poses a threat to human rights.

The current landscape of FRT regulation is not sufficient to protect individual privacy rights. Baseline standards for both private and government use of FRT must be set. The use of FRT has been justified to respond to a public health crisis or to promote public safety, even in the absence of adequate safeguards to protect individual rights. As such, a moratorium on the use of FRT in the short term, until adequate safeguards are adopted, appears to be a good temporary measure in the absence of clear guidelines enumerating acceptable uses of FRT and regulating its use. Economic sanctions similar to that imposed by the United States on SenseTime? , a Chinese facial recognition startup, for its alleged role in the surveillance of Uyghurs, does not appear to be an effective deterrent to alleged misuse of FRT. Given the cross-border implications of the use of FRT, it would be ideal for there to be a collective approach to the regulation of FRT. However, it remains to be seen whether countries can arrive at a middle ground with respect to their stance on FRT use.