This article is written by Mayank Bansal. In this article, the author describes about the Face Recognition System and whether is it against the right to privacy.

Facial Recognition System

Advancement in cloud computing and artificial intelligence technologies today has given a boost to the concept of Facial Recognition Technologies (FRT) for a variety of services ranging from unlocking your phone to tracking and identifying criminals.

How Does Facial Recognition System work?

Facial Recognition Technology works by using biometrics (physical characteristics) of an individual to digitally map an individual facial geometry such as identifying the distance between the eyes, forehead, chin and measuring the size of the nose of an individual. These measurements are then used to create a “facial template” of an individual. This facial template is used to compare with the digitally stored facial biometrics to identify such an individual.

India’s Proposal Towards Implementation of Facial Recognition Technology

Interestingly, India’s National Crime Bureau last year reported that India is preparing for the installation of a nationwide Automated Facial Recognition System (AFRS) as an effort towards “modernizing the police force, information gathering, criminal identification and verification of individuals.”, This report states that the Proposed Indian Facial Recognition System would be among the world’s biggest facial recognition systems.

Can Facial Recognition Technology be Beaten?

As far as the accuracy of the technology is concerned, no mobile manufacturers claim 100% accuracy of their Face Unlock feature. Here the most interesting thing to understand is that Face unlock feature on our mobiles works on intense machine learning technologies, i.e. it learns our face every time we unlock our devices. But despite this, Apple (among the most pioneer brands in the mobile market) itself claims of a possibility that 1 in 1,000,000 random people could unlock your phone.

In India, the Government is secretly testing Facial Recognition Technology for the last 2-3 years on various occasions ranging from Telangana election to Prime Minister Rally. However, as far as the success rate of technology is concerned, Delhi Police in the year 2018 claimed that Facial recognition under the trial phase worked with an operational success of less than 2 Percent. Surprisingly, the 2019 report by the Ministry of Women and Child Development stated that the accuracy of this technology fell less than 1 percent and stated that this technology is even not able to accurately distinguish between a boy and a girl.

Further, it is also found that the rate of accuracy for the FRT is lowest among women, children, racial minorities and transgenders. This bias behaviour of the technology makes it dangerous, particularly when used by the law enforcement agencies as a significant ratio of individuals which are wrongly identified by the use of the FRT.

Despite this, the Union Home Minister recently stated in the Parliament that they have adopted Facial Recognition Technology and has identified around 1100 individuals, who had allegedly taken part in the recent communal violence in Delhi. He also mentioned that while deploying this technology, they have fed the system with the images from identity cards issued by the Government, driving license and other databases to identify the culprits in the communal violence.

However, it is an often-disputed fact that we ourselves could not clearly identify our image on the government identity cards. On the other hand, certain individuals have reported anomalies in their documents, for instance, an individual from West Bengal, recently reported that he received his voter card with the image of Dog on it.

The cause of concern here is, how has the Union Minister and the Police officials in the National Capital have identified 1100 culprits in the recent communal violence using FRT. I highly doubt the result of this identification, especially if the FRT has used the Facial Biometrics of the individuals from the communal violence spot and compared it with the images issued on the government identity cards or driving licenses. Considering this, I believe that here many innocents would be unnecessarily forced to face harsh consequences due to the current accuracy concern of the technology.

Is the Facial Recognition System a new surveillance method?

Setting aside an accuracy dispute of the FRT for a while. Another major concern of this technology is that it has become a tool for the government to create mass surveillance of the public. Although the government is claiming that the motive behind the implementation of the Facial Recognition System in India is to combat the crime, terrorism and to fulfil the requirement of the understaffed police force in the country. However, the use of this technology in the whole nation would ideally create mass surveillance of the public. Interestingly, a report published by the Comparitech (Britain based research firm) claims that New Delhi is among the top 20 cities in the world in terms of video surveillance. It further states, that there are nearly 3,00,000 CCTV cameras across Delhi, which ideally means that on an average 9.62 cameras are placed for every 1000 individuals in the city. Moreover, Delhi CM recently stated that they are planning to install more cameras in the city. Relying on these reports, anyone can imagine the rate at which the government is keeping surveillance on the public. 

Michel Foucault, a French philosopher, in his book Discipline and Punish illustrate a Panopticon theory, wherein he provides an example of a prison in which there are many cells surrounded by a central tower. In this central tower, there is a watchman and all the cells are occupied by the prisoners. The watchmen through this tower shine a bright light in the cells in order to see everyone in the cells. However, the people captured in the cell aren’t able to see watchmen. Therefore, they always assume that they are under the observation of the watchmen every time. Therefore, everyone maintains discipline in the cell. 

Now, the same thing will happen to the general public in the future if India adopts the nationwide Facial Recognition System. Through this mass surveillance, we all would live in a constant pressure that someone is watching us and act in a disciplinary manner. Therefore, we would refrain from engaging in certain activities for the fear of perceived consequences. Ideally, this Facial Recognition System would empower the Government to oppress the individuals in the society and in some cases restrict their fundamental rights, such as a right to freedom of expression and speech of the citizens. The classic example of this scenario could be assumed from the use of this technology in the recent Prime Minister rally. Could anyone justify the reason for using this technology in the PM rally? Obviously, I believe that it would not be used for any security concerns.

How is the Facial Recognition System against the Right to Privacy?

The mass surveillance of individuals arose the issue of Privacy. As I mentioned above, the Facial Recognition system works by comparing the Facial biometrics of an individual with the images available in the database. Now, for implementing a nationwide Facial Recognition System, there is a need to create a database of all the individuals living in India, maybe by uploading the images from Government identity proof such as Aadhar, voter card, etc or by purchasing a facial database from the social media platforms. Further, as of today, there is no legislation that could safeguard the privacy of an individual in implementing Facial Recognition Technology in India. Government has not even clearly identified how they will implement the technology, what kind of data would be used in Facial Recognition Technology, how they would ensure the safety of the individual sensitive information and for what kind of purpose such technology would be used. These are some of the crucial questions that the government should ideally answer to the public. However, on the contrary, the government is experimenting with the technology by using the Indian citizen data, without taking any kind of consent from them.

Further, the Delhi Government had already been criticized by the opposition for hiring Chinese firm Hikvision to set up 1,50,000 CCTV’s by alleging that this move of the administration could spur illegal hacking and data leaks to the Chinese government.

Importantly, the Indian government has failed to understand the landmark judgment passed by the Supreme Court of India in the case of Puttaswamy V. UOI, In this case, a nine-judge bench held that the “right to privacy” is protected under Article 21 of the Constitution. They also held that the Right to Privacy is not only an intrinsic part of the fundamental right to life and liberty but also it is a part of rights guaranteed by Part III of the Constitution. Relying on this, it was suggested in the judgment that the Government should establish such a law, which would help in striking a balance between individual privacy and the interest of the state in terms of its security.

However, the government has failed to justify the standards, which were imposed by the apex court in the above-mentioned judgment in order to justify its intrusion into the right of privacy of individuals. Since, as of today, there does not exist any standard of legality with regard to the use of Facial Recognition Technology, the government did not describe legitimate aim for using this technology, even the government has failed to undertake proportionality between the object and means to achieve it and also they have failed to impose any guarantee against the abuse of state interference. Therefore, in other words, it could also be said that the use of Facial Recognition Technology by the Government is illegal and shall be put under moratorium until the proper law exists for using such technology, meanwhile ensuring the protection of individual’s privacy.

The Question of Legality

Present Scenario

To be precise there are no laws in India as of today, which allows the use of Facial Recognition Technology by the government or its agencies. Moreover, we also do not have any law and regulation which prescribes the manner in which data could be captured through a CCTV camera.

As far as the privacy of the individuals is concerned, then Section 69 of the Information Technology Act, read with the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information rules), 2009 allows the Central as well as State Government to intercept, monitor or decrypt any digital information which is necessary for the interest of the sovereignty or integrity of the country, defence or security of the state, friendly relations with foreign states, for prevention of any cognizable offence or investigation of any offence. Provided that the government provides a reason to be recorded in writing for Interception, Monitoring or Decryption of any digital information, prior to undertaking any such activities. 

Although, until today the government has not provided any written reasoning for monitoring the individual sensitive data, which they are using for implementing Facial Recognition Technology in India. This means that the use of the Facial Recognition System, which is ideally a mass surveillance tool for the government is absolutely illegal and violates our fundamental right to privacy. 

Future Scenario

In December 2019, the government introduced the Personal Data Protection Bill in the Parliament, which is believed to provide a strict legal framework for data protection in India. This bill is applicable to both the government as well as private entities, and it provides a framework for providing notice and undertaking the consent from the Data Principals (users) before collecting and processing their data. Further, this bill imposes a duty on both the Data Fiduciaries (an entity that decides the purpose of processing) as well as the Data Processor (an entity that processes the data on behalf of the data fiduciary) to protect the data of the Data Principals.

This bill strongly emphasizes upon the obligation of the data processor, to process the data only for the purpose consented by the Data Principals or for the purpose incidental for achieving the objective. However, Chapter VIII of the Personal Data protection bill deals with exemptions, under which personal data may be processed without taking prior consent from the Data Principals.  

This chapter provides a blanket exemption to the Central Government, to remove the applicability of any provision of the Personal Data protection bill to the processing undertaken by the government agencies. Moreover, there is no provision in the bill that would restrict the Central Government from adding to the list of exempted agencies. The whole exercise of this provision is conditioned on the fact that the Central Government is satisfied that it is expedient to do so in the following circumstances: 

• In the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order; or
• For preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order. 

In simple words, such provision would ideally mean that a simple order issued by the Central Government, authorizing any government agency to process personal data of the individuals, would allow them to conduct surveillance on the individuals without any safeguards. 

This also means that the Central Government could easily allow the Police officials (which is a government agency) to use the facial biometrics (recognized as sensitive personal data in the bill) of the individuals for using it in facial recognition technology in the interest of “public order”. This shows that there is no legal statute or provision, which could protect the privacy of the individuals from the mass surveillance undertaken by the Government through Facial Recognition Technologies. 

Conclusion

There is no doubt that the Government shall adopt the use of new technologies in its administration. However, meanwhile, they shall also ensure that the use of such technologies duly respects the fundamental rights of the citizen. Surprisingly, the manner in which the Indian Government is adopting the new technologies raises a serious question on the “democratic” aspect of the country. 

By adopting the new technologies, the Government is indirectly seeking towards the authoritative regime in the Country. Be it an unnecessary internet shutdown in the country or using technologies such as Facial Recognition Technology to control the behaviour of the individuals. This shows that the Government is indirectly restricting the individual’s fundamental right to speech and expression. Further, as far as Individual privacy is concerned, then the discretionary power granted to the Central Government in the Personal Data Protection Bill clearly illustrates the future of the individual’s privacy in India. 

It is also believed that the legislature has ignored the cardinal rule of law while drafting the Personal data protection law because, at the time of granting discretionary powers to the Central Government, they should have accompanied the clear and specific guidelines for the government to exercise such powers. 

Considering this, I believe that this is the best time to protect our democracy and fundamental rights from the authoritative move of the government. We shall raise our voices against the Government. Otherwise, I fear to say that if this attitude of the Government is not stopped immediately, then there is a very high possibility that we might soon be stepping towards China-Style Authoritarian Regime. 

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