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Facial recognition technology: Risks and possible regulations

-- By KojiOhtani - 10 Mar 2022

Introduction

Facial recognition technology (FRT), one of the biometrics technologies, is used in many scenes in our society today. It is also true in criminal investigations and counter-terrorism contexts. For example, Clearview AI is adopted by hundreds of law enforcement bodies, including the FBI, and showed its capacity by identifying a suspect of a gun firing incident within 20 minutes (https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html).

Concerns?

Some states and municipal bodies started to forbid or regulate the use of FRT by law enforcement organizations. ACLU initiated a lawsuit against Clearview AI based on Illinois Biometric Information Privacy Act (https://www.nytimes.com/2020/05/28/technology/clearview-ai-privacy-lawsuit.html?searchResultPosition=8). However, it seems that such regulations have not covered all states at this moment. While it is clear that FRT is useful for criminal investigations or counter-terrorism intelligence, FRT entails a severe threat to our privacy. Also, mass surveillance will cause a chilling effect on our activities. Suppose the government can continuously trace our whereabouts using FRT and surveillance facilities in cities. In that case, the government can know what kind of gathering/speech activities we participate in, which causes chilling effects. It is also said that FRT brings about biased output if applied to people of color (Fairness problem). Therefore, I think FRT should be used under certain regulations.

How should we regulate FRT?

A Require a warrant

The first possible way is to require a warrant to use FRT for every search/incident. However, can we deem the use of FRT "search and seizure" under the Fourth amendment? Suppose the law enforcement body collects the data involuntarily from private corporations (e.g., employee/student list, video data of CCTV in private premises) to structure the database. In that case, it may fall under the definition of "seizure." See Carpenter v. United States 138 S. Ct. 2206 (2018).

On the other hand, if they use data from the police's CCTV in public space or pictures posted on Facebook publicly, there will be a gray area. Anybody can see our faces in public spaces or on our Facebook pages open to the public, so our privacy expectations are generally low in such situations. Having said that, before FRT developed, we did not expect that our appearance in public space would cause such a threat to our privacy. In that sense, we should be afforded stronger protection when our faces are processed by FRT. This understanding could be supported by precedents such as Kyllo v. United States 533 US 27 (2001), where the Supreme Court said the use of a thermal scanner from a public street to detect the temperature in the suspect's garage required a warrant.

Even if we require a warrant to use FRT, there are a few practical issues. For example, how and when the government should show the warrant to the persons whose face data is processed.

B Legislate a specific law to regulate the use of FRT

Another possibility is to legislate a new law to regulate the use of FRT wholistically. One way is to prohibit the use of FRT for law enforcement purposes altogether. For example, San Francisco prohibits the use of FRT by the city government comprehensively. EU published its draft regulation, which in principle prohibits the use of remote biometric identification systems, including FRT, in public space for law enforcement purposes (https://digital-strategy.ec.europa.eu/en/library/communication-fostering-european-approach-artificial-intelligence). At this moment, it is not clear what kind of exception will be allowed and how rigid the process for the exception will be.

Another way is to allow the use of FRT under certain restrictions. Washington State requires law enforcement bodies to observe specific procedural requirements (e.g., training of operators of the systems, observation of data management policy, creating plans to mitigate the impact on minorities, periodical submission of accountability report).

C Which way should we take?

If we focus on privacy, comprehensive prohibition would be the best option. However, I think such a measure is too much. If used appropriately, FRT's usefulness is obvious. To cope with criminals or espionage who use more complicated technics with limited resources, the government also needs to utilize the newly developed technologies. For instance, there is a kidnapping case or immediate threat of terrorist attack by a known terrorist, FRT would enable the police to find the victim/suspect swiftly.

As discussed, there could be a form of use of FRT that may amount to "search and seizure" under the fourth amendment that should require a warrant, but it would take time for the Court to create a rule regarding FRT. Even if the Court establishes a rule, the rapid development of technology will bring about new issues.

In order to properly regulate rapidly developing FRT, we should create legislation that specifically covers the requirements for the lawful operation of FRT. I think the rule should at least include (i) the types of incidents/situations, (ii) keeping a record of access to the system, (iii) periodical audit by independent auditors or committees. The audit is essential and should be conducted monthly or bi-monthly so that most cases will be reviewed timely.

Conclusion

FRT is a strong weapon for criminal and counter-terrorism investigations. However, if it is misused or if people doubt that the government abuses it like in China, FRT cannot be trusted and accepted in our society. Therefore, governments should create rules to operate the system safely and transparently as soon as possible.

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