Automatic facial recognition: lawful use or do we need more safeguards?

The legality of deploying automatic facial recognition has come under scrutiny in the UK in recent months, as Ron Alalouff reports.

Unlike the wider use of CCTV – which is regulated in the UK by the Information Commissioner, the Surveillance Camera Commissioner and various codes of practice – there is less guidance specifically about facial recognition. But a number of recent developments has given us some pointers on how this powerful technology can be used lawfully.

Since April 2017, South Wales Police has been trialling automatic facial recognition. In what is said to be the first time any court has dealt with the legality of the technology, the high court rejected an application by Cardiff resident Ed Bridges challenging the deployment.

The court held that the use of the technology was lawful under the Human Rights Act, as the process was subject to sufficient legal controls, statutory codes of practice, and South Wales Police’s own policies. It noted that on each occasion the technology was deployed for a limited time and for specific and limited purposes, and that unless the image of a member of the public matched a person on a watchlist, all the data was deleted immediately after being processed. The court concluded that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of the technology.

“South Wales Police has been using facial recognition indiscriminately against thousands of innocent people, without our knowledge or consent,” said Bridges. “This sinister technology undermines our privacy and I will continue to fight against its unlawful use to ensure our rights are protected and we are free from disproportionate government surveillance.”

Civil rights group Liberty, which is campaigning for an outright ban on what it terms “intrusive and discriminatory facial recognition technology,” said its client would appeal against the judgement.

“I would urge a degree of caution on the part of the police to regard the judgment as being a green light for the generic deployment of automatic facial recognition,” said Tony Porter, Surveillance Camera Commissioner, following the judgement. “It is an intrusive tool with human rights and public confidence implications which have to be considered. There is, however, a heightened sense of confidence that in appropriate circumstances such use will be lawful, but must be demonstrably conducted within the legal framework and demonstrate good governance and legitimacy of endeavour.”

Also commenting after the case, Peter Webster, director of the CCTV User Group and the National Association of Surveillance Camera Managers, said:

“Facial recognition technology may have many useful benefits, but it has grown beyond the scope of the regulatory and legislative frameworks and has introduced risks to the public by way of potentially capturing and storing facial data, for which there is no consent.

“The introduction of specific facial recognition legislation and regulation, together with adequate scrutiny, should be developed so that we can nurture public support for this important technology, in the knowledge that they are sufficiently protected from mis-use and over-proliferation.”

London’s Metropolitan Police has recently completed a trial of live facial recognition and is currently evaluating it before coming to any decision on its future use. The Met’s version uses NEC’s NeoFace technology to analyse images of the faces of people on a watch list. Facial recognition cameras are typically focused on a defined area where people are passing through, and posters are displayed to make people aware the technology is being used. The system detects a face, creates a digital version of it and searches it against a watchlist of people previously taken into police custody, and if it makes a match it sends an alert to an officer on the scene. That officer then compares the camera and watchlist images and decides whether to stop the person. The system only retains those faces that have a match on the watchlist, and these are kept for 30 days – all other images are deleted immediately.

Another use of facial recognition in London – this one run by a private company – has hit the headlines recently. It has emerged that the operators of the iconic Kings Cross Central development used automatic facial recognition between 2015 and March 2018, albeit with only two cameras. It’s not clear whether operator intends to reinstate or even upgrade its use of the technology, but following widespread media coverage and an intervention by London Mayor Sadiq Khan, the Information Commissioner’s Office has launched an investigation into its use.

“We have launched an investigation following concerns reported in the media regarding the use of live facial recognition in the King’s Cross area of central London, which thousands of people pass through every day,” said Information Commissioner Elizabeth Denham.

“As well as requiring detailed information from the relevant organisations about how the technology is used, we will also inspect the system and its operation on-site to assess whether or not it complies with data protection law.

“Put simply, any organisations wanting to use facial recognition technology must comply with the law – and they must do so in a fair, transparent and accountable way. They must have documented how and why they believe their use of the technology is legal, proportionate and justified.

“We support keeping people safe but new technologies and new uses of sensitive personal data must always be balanced against people’s legal rights.”

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