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Law in the Internet Society
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Facial Recognition Technology and Mass Surveillance in IndiaIndia 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.Constitutional FrameworkIn 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.Violation of rights granted under the ConstitutionRecent 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.Lack of regulation and use in law enforcementEven 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.ConclusionThe 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.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. 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