Context:- There was not a single debate in parliament that could take place on the controversy over Pegasus the spyware. Some civil society activists and political leaders, Indian journalists etc were possibly under surveillance. The issue remains is the privacy of the citizenry which has not received much public debate. The Joint Committee examining the Personal Data Protection Bill was granted a fifth time extension. On one hand informational privacy is not the priority of the government and the government is simultaneously exploring the potential of facial recognition technology.
What is facial recognition technology?
- National Automated Facial Recognition System (NAFRS) will facilitate investigation of crime and detection of criminals all over India as it will take most of the data about face recognition.
- NAFRS will function as a national level search platform for the use of facial recognition technology.
- This NAFRS will facilitate investigation and identification of crime for e.g., a criminal regardless of face mask, makeup, plastic surgery, beard or hair extension.
Why this technology is absolutely intrusive:-
- Computer algorithms map unique facial landmarks which includes the facial biometric data such as shape of the cheekbones
- Contours of the lips
- distance from forehead to chin
- Convert these into numerical codes which are termed a faceprint. Thus, for the purposes of ‘verification’ or ‘identification’
- The system compares the faceprint generated with a large existing database of faceprints (typically available to law enforcement agencies) through a database on driver’s licence or police mugshots).
What is the issue in the facial recognition:-
- This technology identifies’ or verifies’ only in probabilities (e.g., a 70% likelihood that the person shown on an image is the same person on a watch list).
- The risk of error and full mouth of biasedness still exists.
- There is a possibility of producing ‘false positives’ for example there can be a situation where the algorithm finds an incorrect match which can result into wrongful arrest.
What NFRS will collect:-
- As NAFRS will collect, store sensitive private information which includes:-
- Facial biometrics for long periods
- The United States’s Federal Bureau of Investigation uses facial recognition technology for potential investigative leads.
- England’s police forces also use facial recognition to tackle serious violence.
- China use facial recognition for racial profiling and mass surveillance which some times to track Uighur Muslims and some times to racial segregation.
- Even in india many states are using this technology for Policing and law and order without fully appreciating the dangers involved
Test of ‘proportionality’
- Supreme Court in K.S. Puttaswamy vs Union of India (2017) judgement recognised right to privacy as a fundamental right
- There are three fold requirement, which are known as test of proportionality, for any law to be legitimised .
What are three conditions:-
- There must exist a ‘need’, in terms of a ‘legitimate state interest’
- The measure adopted must be ‘proportionate’ (there should be a rational nexus between the means adopted and the objective pursued)
- It should be ‘least intrusive.
- National Automated Facial Recognition System fails on these these tests
- NFRS lacks ‘legitimacy’.
- NFRS does not take root from any statutory enactment for example DNA Technology (Use and Application) Regulation Bill 2018 which proposed to identify offenders or an executive order of the Central Government.
- system needs to track people on a mass scale if NAFRS has to achieve the objective of ‘crime prevention’ or ‘identification’ which can result into everyone becoming a subject of surveillance: a disproportionate measure.
- In the absence of a strong data protection law or clear guidelines on whereabout of this technology can be misused by the government and government can put anyone on a watch list
Impact on rights:-
- What are the repercussions if the person to be identified exists in the database and if in other scenarios it does not for example when persons are checked against watch lists.
- This is whereNAFRS’s deployment becomes worrisome.
- With the element of error and bias, facial recognition can result in profiling of some overrepresented groups or a bias against these groups (such as Dalits and minorities) in the criminal justice system.
- unregulated use of facial recognition technology will disincentive independent journalism and the right to assemble peaceably without arms and any other form of civic society activism which is badly needed for functioning of a liberal democracy.
Global countries facing such issues:-
- In the United Kingdom, The Court of Appeal has ruled the use of facial recognition technology by South Wales as unlawful in the absence of clear guidelines.
- The Facial Recognition and Biometric Technology Moratorium Act of 2020 in the United States, was introduced in the Senate to prohibit biometric surveillance without statutory