Context

On June 23, 2021, the Joint Committee examining the Personal Data Protection Bill (2019) was granted a fifth extension by Parliament. While the Government has been simultaneously exploring the potential of facial recognition technology.

Automatic Facial Recognition in India

• To empower the Indian police with information technology, India approved implementation of the National Automated Facial Recognition System (NAFRS).
• On its implementation, it will function as a national-level search platform that will use facial recognition technology.
• It will help to facilitate investigation of crime or for identifying a person of interest regardless of face mask, makeup, plastic surgery, beard or hair extension.

Issues with AFR technology

• Intrusive in nature: The technology is absolutely intrusive, for the purposes of ‘verification’ or ‘identification’, the system compares the faceprint generated with a large existing database of faceprints typically available to law enforcement agencies.
• Accuracy and bias: Though the accuracy of facial recognition has improved over the years due to modern machine-learning algorithms, the risk of error and bias still exists.
• With the element of error and bias, facial recognition can result in profiling of some overrepresented groups (such as Dalits and minorities) in the criminal justice system.
• Privacy: As NAFRS will collect, process, and store sensitive private information: facial biometrics for long periods; if not permanently — it will impact the right to privacy.
• Accordingly, it is crucial to examine whether its implementation is arbitrary and thus unconstitutional, i.e., is it ‘legitimate’, ‘proportionate to its need’ and ‘least restrictive’?
• The Supreme Court, in the K.S. Puttaswamy judgment provided a three-fold requirement to safeguard against any arbitrary state action.
• Unfortunately, NAFRS fails each one of these tests.
• Any encroachment on the right to privacy requires the existence of ‘law’ (to satisfy legality of action); there must exist a ‘need’, in terms of a ‘legitimate state interest’; and, the measure adopted must be ‘proportionate’ and it should be ‘least intrusive.’
• Lack of law: It does not stem from any statutory enactment (such as the DNA Technology (Use and Application) Regulation Bill 2018 proposed to identify offenders or an executive order of the Central Government.
• Rather, it was merely approved by the Cabinet Committee on Economic Affairs in 2009.
• Fails proportionality test: Even if we assume that there exists a need for NAFRS to tackle modern day crimes, this measure is grossly disproportionate.
• For NAFRS to achieve the objective of ‘crime prevention’ or ‘identification’ will require the system to track people on a mass scale — avoiding a CCTV in a public place is difficult — resulting in everyone becoming a subject of surveillance: a disproportionate measure.
• Impact on civil liberties: As anonymity is key to functioning of a liberal democracy, unregulated use of facial recognition technology will dis-incentivise independent journalism or the right to assemble peaceably without arms, or any other form of civic society activism.
• Due to its adverse impact on civil liberties, some countries have been cautious with the use of facial recognition technology.
• In the United States, the Facial Recognition and Biometric Technology Moratorium Act of 2020 was introduced in the Senate to prohibit biometric surveillance without statutory authorisation.
• Similarly, privacy watchdogs in the European Union have called for a ban on facial recognition.

Way forward

• Statutory basis: NAFRS should have statutory authorisation, and guidelines for deployment.
• Data protection law: In the interest of civil liberties it is important to impose a moratorium on the use of facial recognition technology till we enact a strong and meaningful data protection law.

Consider the question “What are the issues associated with the deployment of NAFRS? Suggest the way forward.”

Conclusion

In sum, even if facial recognition technology is needed to tackle modern-day criminality in India, without accountability and oversight, facial recognition technology has strong potential for misuse and abuse.

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