Facial Recognition Technology embodies a software that is capable of identifying and authenticating the identity of an individual by recognizing the physical traits of their face. The underlying technology, machine learning, characterizes a subject based on relative facial features and expressions from a photograph, video or in real-time. The technology has advanced at an alarming rate for the last decade with promising advantages but remains a compelling cause for concern as it is marred with privacy, data protection and discriminatory concerns. The technology is interrupting citizens’ rights and freedoms as it is being deployed in unscrupulous ways despite the colossal lack of transparency and the absence of regulation and procedural safeguards. The recent trend across the globe has involved governments employing this technology to identify participants in protests, thereby violating an array of civil rights and liberties of these participants.
The primary blemish on the technology is an algorithmic bias as it exhibits grave demographic differences, and is often prone to errors. The technology presents gender and skin-color biases maintaining poor accuracy rates, especially in cases of women of color. This leads to ‘exclusionary experiences and discriminatory practices’ and raises indispensable questions regarding the potency of the technology.
In the United States, the debate around the unregulated use of this technology in the hands of law enforcement agencies has spiked as a result of its use to target the participants of George Floyd protests that are a part of the Black Lives Matter movement. Even though this decentralized movement rekindled a discussion on police accountability and systemic racial oppression, ironically, the law enforcement deployed the technology to identify and arrest protesters. Similarly, the technology was also purchased and implemented by the Indian government during protests that began in 2019 after the government enacted the contentious Citizenship Amendment Act (CAA). The Amendment was largely criticized for persecuting the minorities, especially the Muslim community in India. The protests initially erupted in the state of Assam, but gradually spread to other parts of the country with varied objectives. The Delhi government deployed facial recognition technology during these protests to collect data and add on to their database under the garb of identifying “rabble-rousers and miscreants”.
Peaceful protests are quintessential to democracy and allow individuals to exercise the right to dissent. Deployment of intrusive technologies interferes with an individual’s ability to enjoy their rights freely and disincentivizes them from expressing their opinions. It further entrenches the power imbalance between the authorities and individuals, the very thing that these protests are trying to annihilate in the first place.
The rise in opposition against the use of this technology primarily stems from concerns over violation of international norms and fundamental rights enshrined under the Constitutions of these jurisdictions. The apprehension against the use of facial recognition technology arises from the uncertainty of the use of personal data collected by law enforcement agencies which raises primary concerns about the violation of the right to privacy and freedom of speech and expression.
In India, the insufficient regulation of the technology has raised questions about the protection of fundamental rights guaranteed under Article 21, Article 25 and Article 19 of the Indian Constitution. The Supreme Court of India, in Justice KS Puttaswamy v. Union of India, observed that the purposive limitation approach must be taken while collecting personal data of individuals and held that the consent of individuals is a mandatory requirement for data collection. However, the blatant disregard of these principles by law enforcement authorities has led to unease and intimidation of protesters. The authorities scanned their faces without consent, and participants are unaware of the extent of data collection and uncertain about the use of such data. This is a clear violation of the right to dissent as guaranteed under Article 19 of the Indian Constitution, which is considered to be the basic fiber of a democratic setup.
Section 31 of the Police Act, 1861 is often used to justify the actions of law enforcement during protests stating that these actions are based on the requirement of public duty. However, they are baseless as the right to privacy of an individual is covered under the right to life which cannot be suspended under any circumstances. Currently, there are no data protection laws in India which deal with this technology. However, the Personal Data Protection Bill, 2019 which is pending before the Parliament has alarming loopholes as the provisions of this Bill allows the state to collect personal data of individuals without their consent citing matters of security of state and concerns over public order.
The United States Constitution protects the right to assemble and freedom of speech and expression under the First Amendment. The Fourth Amendment to the Constitution protects the privacy of individuals by ensuring that they are not searched without warrants. Currently, there is a dearth in precedents concerning facial recognition technology in the US. The US Supreme Court has decided several cases on the right to privacy and emerging technologies emphasizing the importance of the Fourth Amendment. In Kyllo v. United States, Justice Scalia said that “[a]pplying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice.” In United States v. Jones which dealt with thermal tracking of individuals, and Carpenter v. United States which dealt with tracking individuals using cellphone locations, the Court held that the expectation of maintaining privacy in public spheres is a legitimate one while expressing dissent. The same analogy can be extended to the use of facial recognition technologies in the context of protests.
Multiple subject-specific legislations on the use of facial recognition technologies by law enforcement are pending before the Senate; however, these are not without flaws. The Facial Recognition and Biometric Technology Moratorium Act (2020) imposes a blanket ban on law enforcement authorities from purchasing and using facial recognition technology. The imposition of such a ban is not well-founded as the technology can be used effectively to significantly reduce the amount of state funds for traditional surveillance mechanisms with stringent regulations. The Facial Recognition Technology Warrant Act (2019) is pending before the US Congress, and it mandates a warrant for the use of this technology for surveillance by law enforcement. While the provisions of the Bill can prove to be useful to tackle the encumbrances posed, it still disregards the algorithmic bias of the technology.
Fundamental rights such as the right to privacy, freedom of speech and expression and right against discrimination have been guaranteed under Article 12, Article 19 and Article 7 of the Universal Declaration of Human Rights, respectively. The right to peaceful assembly and right to privacy is also covered under Article 21 and Article 17 of the International Covenant on Civil and Political Rights.
The relevance of referring to international standards to assess the use of this technology by law enforcement in the United States and India is based on the fact that neither jurisdictions have subject-specific legislations to deal with the encumbrances posed by the technology. Currently, the only international standard for regulation of the use of facial recognition technologies by law enforcement agencies is the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108). Further, there are reports which suggest that the United Nations must adopt Convention 108 as a global treaty to protect fundamental freedoms of assembly and dissent. Therefore, accession to this Convention is a viable option for both jurisdictions.
Further, the report of the United Nations Human Rights Council on the impact of new technologies on the promotion and protection of human rights in the context of assemblies, including peaceful protests, has made a clear appeal to nations around the world to refrain from using surveillance mechanisms during protests. The concerns of the Special Rapporteur on the rights to freedom of peaceful assembly and of association are largely based on the inaccurate flagging of individuals due to algorithmic bias and the breakdown of societal order due to lack of trust between citizens and law enforcement authorities. However, India and the United States have blatantly disregarded these appeals and continued to deploy these technologies without legislative safeguards.
The current state of global affairs inches gravely towards George Orwell’s farsightedness in his novel ‘1984’, which addressed several ethical dilemmas including constant surveillance and thought-policing. It is relevant now more than ever as what was once a mere apprehension in a futuristic dystopian era, is now a reality with the advent of technologies such as the facial recognition software. The totalitarian Big Brother regime that Orwell warned his readers about is closer to home than one would like to admit. The unsettling omnipresent machine gaze, covert surveillance of one’s every move and non-consensual data collection resonates with a despotic society. Constitutional values and legal doctrines granting fundamental rights and freedoms to individuals are sidelined when states adopt surveillance technologies to restrict liberties. The United States and Indian jurisdictions need to pay additional attention to the fundamental rights of their citizens as these rights stem from the principal right to life. They need to install checks and balances to maintain distance from authoritarian mechanisms and progress towards accumulating citizen’s faith in governance.
Neeraja Seshadri is a final year student pursuing BA. LL.B. (Hons.) at School of Law, Christ University. She is interested in Intellectual Property Laws and Competition Law. The author is a staff writer at JURIST.
Sindhu A is a final year student pursuing BA. LL.B. (Hons.) at School of Law, Christ University. She has a keen interest in Technology Laws and Intellectual Property Laws. The author is a Contributing Editor at the robos of Tech Law and Policy blog where she writes regularly on issues surrounding Artificial Intelligence and Digital Rights among others.
Suggested citation: Neeraja Seshadri and Sindhu A, Violation of Fundamental Rights by using Facial Recognition Technology in Protests, JURIST – Student Commentary, August 19, 2020, https://www.jurist.org/commentary/2020/06/seshadri-sindhu-facial-recognition-technology-in-protests/.
This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
