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Facial Recognition Technology and Mass Surveillance in India
-- By NinniSusanThomas - 22 Oct 2021
Background and Context
India has a long history of State surveillance - both physical and digital, targeted and bulk. In the colonial period (1857 - 1947), the British government regularly engaged in phone tapping, authorised by the 1885 Telegraph Act. Physical surveillance of entire groups and tribes was conducted under the 1870 Criminal Tribes Act. At the time of independence, much of the surveillance infrastructure created by the British was maintained intact; as judgments of the Supreme Court in the 1950s, 60s, and 70s show, warrantless searches and seizures of documents, phone tapping, as well as surveillance of movement of suspected criminals and “history-sheeters”, was a regular occurrence. Facial Recognition Technology is thus only the latest in a long history.
Why is this relevant? If it is explain why. If it is not, you need the space.
In 2019, National Crime Records Bureau issued a tender for the creation of a National Automated Facial Recognition System, much of which would be populated by gathering data from other privacy-invasive government projects, such as the Crime and Criminal Tracking and Network System (CCTNS). Even apart from a federal-level effort, FRT has been deployed in various states, and has been justified by the logic of policing: either ostensibly to guarantee the safety of women (as in Uttar Pradesh), broader public safety by apprehending people with a past criminal record before major public events (as in Tamil Nadu), or to guarantee safety inside school classrooms (as in Delhi). In addition, a Russian start-up has set up around 500 FR cameras across railway stations in Gujarat and Maharashtra, including Mumbai (through which 7 million passengers transit daily). According to a tracker set up by the Internet Freedom Foundation, there are currently 75 FRTS employed across the country, including major airports. Not just government bodies, but even state owned firms like NTPC have employed FRTS for attendance and consent is not required.
Why not just a few links to the sources from which you got this? A paragraph could become two sentences.
Constitutional Framework | >
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< | In K.S. Puttaswamy v Union of India, a 2017 judgment handed down by a nine-judge bench of the Supreme Court of India, consistent jurisprudence of the previous four decades was consolidated and upheld, and it was declared that the Indian Constitution protects (an unwritten) right to privacy. The right to privacy was held to include decisional privacy, informational privacy, the privacy of the home and of documents, and the protection from arbitrary surveillance. This right could only be breached as long as the four-pronged test of proportionality (existence of a law, a rational aim, necessity, and proportionality stricto sensu had been satisfied). Arguably, the plurality opinion also held that mass surveillance would, per se, not be proportionate.
In addition, and in the context of FRT, the Indian Constitution recognises a right to equal protection of laws, and equality before law. Recent judgments of the Supreme Court have affirmed that the Constitution outlaws not just direct discrimination, but also indirect and intersectional discrimination.
FRT and the Constitution
It is clear that the use of FRTs violates both the right to privacy and the right to equality.
No, it is not clear. If you mean to make the argument, terrific, but it can't be assumed.
In a recent challenge before the Delhi High Court, it was pointed out that the accuracy of the FRT sought to be deployed is around 2%. This raises immediate rule-of-law concerns.
Under what circumstances. Lots of evidence collected by police is unreliable. Tips are far less than 2% reliable. And?
However, not only is accuracy a problem, but inaccuracy is also asymmetric in character: the quality of output is only as good as input data, and thus, FRT often reflects the prejudices of its designers. Studies worldwide have shown, for example, that FRTs are often more accurate in recognising white males, and make egregious errors in other cases. | >
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Not in China, where because the same types of software are differently trained, white males are not the favored recognition subjects. And again, what is our ground of complaint because some evidence is unreliable. Need we not inquire into what is done with it, first?
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> | Facial Recognition Technology and Mass Surveillance in India | | | | |
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< | In India, these inaccuracies map on to not just race and gender, but caste as well. The deployment of FRTs, thus, risks perpetuating existing structural injustices within the Indian criminal legal system, where there is already overrepresentation of groups such as Dalits and Muslims in prison. | | | | |
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Amit Shah told Parliament that their software wold recognize clothing. Might it not be time to decide whether there is any reality to the claims (either from GoI? or from its critics) in fact?
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> | India has a long history of State surveillance - both physical and digital, targeted and bulk. Facial Recognition Technology (FRT) that has been employed in states such as Uttar Pradesh, Tamil Nadu and Delhi is only the latest in a long history. There has also been a federal effort- in 2019, National Crime Records Bureau issued a tender for the creation of a National Automated Facial Recognition System, much of which would be populated by gathering data from other privacy-invasive government projects, such as the Crime and Criminal Tracking and Network System (CCTNS). According to a tracker set up by the Internet Freedom Foundation, there are currently 75 FRTs employed across the country, including major airports. With no guidance on where and how it can be utilized, this has become a scenario for the Indian State to practice mass surveillance without any accountability. | | | | |
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< | Furthermore, at the time of writing, there does not exist a data protection law in India. There is thus no regulatory framework in place that might mitigate any of these outcomes. | >
> | Constitutional Framework | | | | |
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< | As though the
legislation now moving, or any eventual legislation, will actually
cover police agencies. See the pieces Mishi and I recently published on the subject in ET and ToI? , and the current ICR on the legislation.
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> | In K.S. Puttaswamy v Union of India, a 2017 judgment handed down by a nine-judge bench of the Supreme Court of India, consistent jurisprudence of the previous four decades was consolidated and upheld, and it was declared that the Indian Constitution protects (an unwritten) right to privacy. The right to privacy was held to include decisional privacy, informational privacy, the privacy of the home and of documents, and the protection from arbitrary surveillance. This right could only be breached as long as the four-pronged test of proportionality (existence of a law, a rational aim, necessity, and proportionality) stricto sensu had been satisfied. Arguably, the plurality opinion also held that mass surveillance would, per se, not be proportionate. | | | | |
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< | This is particularly problematic when one realises that this data will also be used to extract particular data points such as the facial features and other biometrics, which the individual has not consented to sharing when entering a CCTV-surveilled zone, and these data points can be used to track future movements of the person. Therefore, integration of FRT with a network of CCTV cameras would make real time surveillance extremely easy. | >
> | Violation of rights granted under the Constitution | | | | |
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Of course, that's the point. And? There's still no legal analysis to accompany the factual claims.
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> | Recent instances of employment of FRTs at protests against the ruling government are clear examples of how FRTs are in violation of the right to privacy and dissent as per law. They were used to identify individual protestors and they were charged with crimes or harassed. The Home Minister Amit Shah explained in the Parliament that it was made possible by images in government-issued identity cards and “other databases” being fed into FRT systems. The statement by the Home Minister strengthens the idea that the government will use the data available to them for purposes it was not meant to be used for and target individuals who object to their actions. It affected their right to privacy by curtailing their right to dissent, personal freedom and movement. Mass surveillance through FRTs thus not only affects one individual’s privacy but also results in a chilling effect of the same rights on others who might want to protest against the government, thereby violating one’s decisional privacy. When the Government has not shown that the use of FRTs for law enforcement is legitimate or proportionate, it can be seen how this stands in violation of the rights as consolidated under Puttaswamy.
This is particularly problematic when one realises that this data will also be used to extract particular data points such as the facial features and other biometrics, which the individual has not consented to sharing when entering a CCTV-surveilled zone, and these data points can be used to track future movements of the person. Therefore, integration of FRT with a network of CCTV cameras would make real time surveillance extremely easy and will be a constant violation of a person’s privacy. | | | | |
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< | An absence of an effective data protection law also risks function creep. For example, it has been recorded that while the Delhi Police initially received permission to use FRT to track missing children, it was later used to profile and track individuals at anti-government peaceful protests. This is a classic example of function creep that violates the principle of purpose limitation. There is a violation here not only of the rights to privacy and freedom of association, but also an indirectly discriminatory effect on minorities, as many recent protests in India have been minority-led. | >
> | Lack of regulation and use in law enforcement | | | | |
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< | Finally, as the record around Aadhaar - India’s national biometric identification system - has shown, digital systems, when applied to welfare entitlements, can have a serious impact on socio-economic rights, especially because of the pervasiveness of false positives and false negatives. Making the provision of ration dependent upon facial recognition, for example, risks deprivation of the right to food (as has already happened with Aadhaar), especially in areas of India where access to digital networks is patchy and uneven. | >
> | Even with a regulatory framework in place, it might be difficult to mitigate any of these outcomes. But the complete absence of a data protection law as in India currently gives complete freedom for function creep. For example, while the Delhi Police initially received permission to use FRTs to track missing children, it was later used to profile and track individuals at anti-government protests. This is a classic example of function creep that violates the principle of purpose limitation.
The Delhi Police had been authorised to use facial recognition software to track missing children. In a case monitoring these missing cases by the Delhi High Court, it was admitted that it had not resulted in the finding of any children, that the systems only had an accuracy of 2% and that the FRTs were now being used for other wider surveillance and investigation purposes. This points to the very low accuracy rate of FRTs being used. So when these tools are used for identification for inclusion in the criminal justice system, the harms caused by false positives are great. Not only is accuracy a problem, but inaccuracy is also asymmetric in character: the quality of output is only as good as input data, and thus, FRT often reflects the prejudices of its designers, which have been pointed out in studies. In India, these inaccuracies map on to not just race and gender, but caste as well. The deployment of FRTs, thus, risks perpetuating existing structural injustices within the Indian criminal legal system, where there is already overrepresentation of groups such as Dalits and Muslims in prison. | | | | |
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> | Conclusion | | | | |
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< | The present and intended deployment of FRT in India - across a range of domains - raises serious questions of constitutionality. While some of these may be arguably addressed by a strong data protection law, others - such as deployment for surveillance or for welfare - will arguably fail the test of proportionality in all events. | >
> | The present and intended deployment of FRTs in India - across a range of domains - raises serious questions of constitutionality. While some of these may be arguably addressed by a strong data protection law, others - such as deployment for surveillance or for welfare - will arguably fail the test of proportionality in all events. While deeming unconstitutional an attempt by the Government to mandatorily link Aadhaar with bank accounts for the claim that money laundering can only be targeted by such measures, the Supreme Court noted that imposing this on the general populace without any wrongdoing on their part would be disproportionate. This is exactly what is being carried out by the government with FRTs. Its continued use for surveillance in India, without any legal framework to regulate it, is a violation of the Supreme Court’s diktat. Without practicing judicial evasion, the Court must step in to bring to life the rights granted by the Constitution to the citizens of the country, instead of allowing a Panopticon to thrive. | | | | |
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This conclusion depends on the legal analysis not given. The best route to improvement is to reduce the space given to factual material that can be sourced and linked, so as to make room for the actual constitutional arguments you've kept in your pocket.
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