Watchdog demands new legal code to protect public from 'invasive' facial recognition technology

Charles Hymas
Facial recognition technology - AFP

A new statutory code to govern how and when police deploy “invasive” facial recognition cameras in public places has been demanded by the Information Commissioner to protect the public’s right to privacy.

Elizabeth Denham has also for the first time issued an opinion in which she lays down the “high statutory threshold” that police will need to meet to justify using facial recognition cameras.

Her opinion, which will be seen as a blueprint for the new code, says it should be deployed only where police can show “demonstrable benefit” to the public such as locating and convicting a serious criminal.

She also recommends tough restrictions on the databases of suspects that police use, a requirement that images captured of “innocent” people are deleted immediately and that the public should be told when the cameras are being deployed.

Her move follows an investigation by the Commissioner into the use of the cameras by police amid growing concern at the spread of “potentially invasive” technology that threatens individuals’ rights to privacy.

South Wales Police, the Metropolitan Police and Leicestershire’s constabulary have all conducted public trials of the cameras.

Evidence has, however, emerged of police sharing use with private sector firms such as at King’s Cross in London, Meadowhall shopping centre in Sheffield and the Trafford Centre in Manchester.

“Live facial recognition (LFR) is a step change in policing techniques; never before have we seen technologies with the potential for such widespread invasiveness,” said Ms Denham.

“The results of [my] investigation raise serious concerns about the use of a technology that relies on huge amounts of sensitive personal information.

“We found that the current combination of laws, codes and practices relating to LFR will not drive the ethical and legal approach that’s needed to truly manage the risk that this technology presents.

“The absence of a statutory code that speaks to the specific challenges posed by LFR will increase the likelihood of legal failures and undermine public confidence in its use.

“As a result, the key recommendation arising from the ICO’s investigation is to call for government to introduce a statutory and binding code of practice on the deployment of LFR. 

“This is necessary in order to give the police and the public enough knowledge as to when and how the police can use LFR systems in public spaces.”

She said more work needed to be done to eliminate bias in the algorithms particularly against ethnic minorities to “help help and maintain public confidence and cross-community support.”

She said she had issued her opinion because the implications for law enforcement were so far reaching.

It follows a ruling on a test case against South Wales Police by an innocent member of the public who objected to the cameras. The judges ruled that it was justifiable and proportionate even though taking an image was as intrusive as a fingerprint or DNA swab.

Ms Denham warned that the High Court judgment should not be seen as a blanket authorisation for police forces to use LFR systems in all circumstances.

“My Opinion recognises there is a balance to be struck between the privacy that people rightly expect when going about their daily lives and the surveillance technology that the police need to effectively carry out their role,” she said. 

“Therefore it makes clear that police forces must provide demonstrably sound evidence to show that LFR technology is strictly necessary, balanced and effective in each specific context in which it is deployed.”

She acknowledged there was “high” support among the public for police to use facial recognition to catch criminals but there was less back for its use by the private sector in a “quasi-law enforcement capacity.”

She is now investigating private companies use of the technology which she warned was advancing with AI systems that could analyse people’s gait and predict emotions based on facial expressions.

“It is right that our police forces should explore how new techniques can help keep us safe,” she said.

But she added: “Moving too quickly to deploy technologies that can be overly invasive in people’s lawful daily lives risks damaging trust not only in the technology, but in the fundamental model of policing by consent. We must all work together to protect and enhance that consensus.”