• Nikhilesh Koundinya & Grishma Mahatme

Facial Recognition- The Next Big Question of Law?

Introduction

While the topic under the Indian context has no straightforward answer, it is pertinent to understand what facial recognition includes before moving on to discuss its legality. As per the general understanding, a facial recognition system is a technology that is capable of identifying and corroborating a person from a digital image or video frame obtained from a video source.


The technology is considered to be vital to the efficient functioning of enforcement agencies and the government in the future as the same help agencies track criminals/offenders by comparing their facial features to the pictures that the database collects in lieu of the technology. While the primary purpose of facial recognition technology is to further security for citizens of the country, there are a number of problems that need to be addressed technically and legally for the effective and efficient functioning of the same.


This article dwells on FRT and its application in India. While the article mentions the pros and cons of the technology it largely deals with the development of a regulatory landscape for the same and the evolution of a law that would find the right balance between privacy and security.


Problems arising due to the use of Facial Recognition Technology (“FRT”)


Inaccuracy of Data

In India, there are multiple FRT systems that have already been put to use by various state governments and the central government but the functioning of the same has not been codified. One of the major problems that arise because of this is the accuracy and reliance on data generated by the FRTs. Considering FRTs have garnered popularity over the last few years, the technology is still at a nascent stage which means it is open to error and rectification. But when used by government agencies to arrest or detain individuals the same may result in two situations:

  • The technology may provide a false positive which essentially means that the person arrested or detained may not have committed any crime but due to technical lapses the information yielded is incorrect.

  • The technology may yield a false negative whereby a person who is actually a culprit may not be recognized by the system due to technical lapses.

Both situations are catastrophic for justice as on one hand an innocent individual is being arrested while on the other hand, a known criminal is walking free.


Government overstepping with the Technology

With the KS Puttuswamy judgment, it was apparent that privacy is a fundamental right under the Constitution and if the same needed to be infringed it needed to be proved that such infringement is proportionate and necessary for achieving the aim. Automated Facial Recognition System (“AFRS”) which is being developed by the Home Ministry for enforcement agencies and the National Crime Records Bureau directly infringes upon the right to privacy of a citizen. While the overall aim might be to secure the country from offenders or criminals such wide surveillance of the population without any guidelines would infringe on an individual’s right to live freely and peacefully.


Legality of FRT

While the problems with the system have been enumerated above, there is no shying away from the fact that FRT is the future and the law needs to develop itself to accommodate the same and come up with a roadmap of how such technology would function under the Indian context. While the Information Technology Act, 2000 (“IT Act”) does not mention FRT, the Personal Data Protection Bill (“PDPB”) makes a reference to the same by defining biometric data under Section 2(8) of the bill which includes “facial images and iris scans which allow or confirm the unique identification of a natural person”. Biometric data under the bill has been added to the category of Sensitive Personal Data which can only be processed under a few situations enumerated under Section 21 of the bill including responding to a medical emergency, providing medical services or health services, and ensuring safety to any individual during a disaster or any breakdown of public order.


It has been enunciated under Section 33 of the bill that any data fiduciary intending to use sensitive personal data like biometric data shall undertake a data protection impact assessment which will include providing a detailed description of the operation, assessment of potential problems which may arise, and measure for dealing with the same. It has also been clarified that unless permitted by the Central Government no biometric data will be processed. While the PDPB has dealt with biometric data in detail the same has not been passed by the legislature as of yet. While the bill chalks a roadmap for use of biometric data, facial recognition has not been dealt with individually by the bill. This raises an urgent need to make guidelines and laws with respect to facial recognition for providing a roadmap to enforcement agencies on the use of such technology only for grave circumstances than violating the privacy of an individual.


Conclusion & Recommendations

With respect to ensuring the accuracy of the data generated by FRT following on the lines of the PDPB, the government must constitute a committee consisting of experts on FRT, the union minister for law, and the opposition leader to formulate guidelines and policies for approval of FRT’s being used by the state and central government. This will further the cause of accuracy as the committee would be headed by the expert of FRT and in case of a conflict between the committee of 5 individuals, the decision of the head would prevail ensuring complete unbiasedness and fairness maintaining the security of the nation and privacy of the individual.


While drafting the legislation dealing with FRT one of the components requiring examination would be when and how can the technology can be used. As indicated under the PDPB bill the technology FRT must only be permitted in three situations as indicated above and for use of the technology, the government would have to approach the court for obtaining an order which would act as a control mechanism for using the technology only when needed and not at the whims and fancies of the government. The same method is followed by the government of Massachusetts in USA and hence precedence for application of the said method already exists.


Additionally, the legislation must address the use of FRT in judicial proceedings. While there has been considerable discussion over the same, FRT if admitted as evidence should be backed by expert testimony as is done for signatures and thumb impressions. The same would lead to justice being carried out in the true sense.



*The authors of this post are Nikhilesh Koundinya and Grishma Mahatme - law students from Symbiosis Law School, Pune. They can be reached at nikhilesh.koundinya@gmail.com.


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Article Number: 2022/LKLR/06B25

Editor: Zoma Itrat Khan

 

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Journal.

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