The legal risks of government-deployed facial recognition cameras

Aspiring barrister Armaghan Khan explores the implications

Each day, artificial facial recognition technology (AFT) is approved and rolled out in more parts of the UK. Surveillance remains a divisive issue. Some view AFT as a useful tool for improving public safety, while others see it as a troubling step towards an increasingly intrusive state.

Ultimately, this dispute can only be resolved by law. The rule of law has long been the bedrock of the modern legal order, and the late Lord Bingham articulated eight principles that give it practical meaning. Those principles provide a useful framework for assessing whether AFT should be regarded as a legitimate tool of governance or a cause for concern. It is against that framework that AFT must be tested.

Applying the principles

• An unpredictable and unequal law (principles 1 & 3)

The code and regulations surrounding AFT are disorganised. The current regulatory scheme is a mixture of Different legislation, principles and codes; there is no centralised regime. The case R (Bridges) v Chief Constable of South Wales Police (Bridges) is the legal authority on the deployment of AFT. However, there remains a consistent failure to meet the standards set out in Bridges. Both the public and private sectors are playing it by ear. Public bodies, such as the police, have their own standards and codes, and private retailers, such as Home Bargains, have their own. A recent study by the Ada Lovelace Institute confirmed this disparity.

The problem of inequality is genetically embedded in AFT as a result of algorithmic bias (systematic unfairness in AI that favours or disadvantages certain groups, stemming from human biases in its training data). Empirical studies have shown that error rates — i.e., picking the wrong face or failing to recognise a face — increase exponentially when detecting dark-skinned individuals. To be precise, 34.7% for dark-skinned tone subjects, while for lighter-skinned subjects, the maximum error tended to be 0.8%. We saw this in Mr P. Manjang v Uber Eats UK Ltd, where Uber Eats was accused of indirect racial discrimination after the AFT failed to recognise an employee of African descent.

• Arbitrary power and abused rights (principles 2 & 5)

The second principle requires that arbitrariness that threatens individual rights be prohibited. In Bridges, the Court of Appeals ruled that AFT’s deployment allowed too much discretion regarding who could be on the watch list (i.e., the criteria for being on the watch list) and where (i.e. Scale and scope) AFT could be deployed. As previously mentioned, this non-centralised regime inadvertently promotes this discretion. AFT deployments continue to fail to satisfy the requirements set by bridges.

AFT deployments threaten human rights, including in China’s repression of the Uighurs. Hence, human rights activists and academics called for a worldwide ban. However, a more subtle and sinister threat to human rights is the so-called ‘chilling effect’. The chilling effect occurs when fears of being watched or under surveillance lead an individual to alter their behaviour. Therefore, in the long run, Human Rights will be undermined in the UK with AFT deployment.

• A system that cannot be challenged (principles 4 & 6)

One of the rule of law’s primary functions is to ensure accountability of power, whether that power lies in the state, public sectors or even private entities. AFT marks a fundamental change in the balance of power between states and individuals. Modern surveillance is already all-encompassing, but AFT is even more pervasive. Both the public and private sectors work together to manage this system. Prominent tech firms (Big Tech) control the digital realm, enabling them to exert asymmetrical power over individuals and exploit them for profit. This results in authoritarian policies that threaten the rule of law.

The sixth principle requires that legal disputes must have a means of resolution and enforcement, without delay or undue expense. In the Clearview AI case, images of UK citizens were harvested, resulting in a £7.5 million fine. The decision was overturned on jurisdictional grounds, leaving victims without a remedy. Recently, the data protection authority won an appeal of the tribunal ruling. However, Clearview was fined by the UK Information Commissioner’s Office in 2022, which shows the extensive delay and the undue expense in resolving the situation for the victims.

• Fair trials to international obligations (principles 7 & 8)

Fairness requires reducing the power imbalance among the parties involved. AFT operates in a ‘digital space’ where power asymmetry is exaggerated. Codes (codes of conduct or ethics), not laws, regulate AFT systems. Big Tech often takes advantage of this because codes lack the same force of law. Furthermore, Big Tech invests millions in promoting its products, and the public sector receives funding for its implementation. This leads to ‘political pressure on courts’, risking their independence. This contravenes principle seven, as individual victims often lack the power exercised by Big Tech and public bodies.

The UN, one of the most critical international entities in empowering and promoting international law, has called for an ‘immediate moratorium’ on the sale and use of AFT. Furthermore, the European Court of Human Rights ruling against Russia stated that the use of AFT targeting protesters interfered with human rights, and its deployment was not justified. According to leading specialists, if the UK were to use AFT similarly, it would constitute a ‘greater interference’ with human rights. Here’s the kicker: AFT has been deployed in a similar manner in the UK. Until it can be assured that AFT deployment is consistent with international law, its deployment ought to be restricted according to international law.

Conclusion

Yes, AFT can support national security and humanitarian efforts. Governments have used it to enforce Covid regulations and to detect threats in public spaces. However, the rule of law requires more than this simplistic justification. Convenience cannot outweigh the rule of law. AFT must be subject to the rule of law, which can be achieved by adopting the recommendations of experts such as the Ada Lovelace Institute.

Armaghan Khan studied law at the University of Huddersfield and completed the Barrister Training Course (BTC) at BPP University. He has a particular interest in public law and human rights.