Facial Recognition Technology: The problem with private play in FRT

An unfettered private security sector—especially in facial recognition technology—is a global concern. It is too lucrative to be checked through self-regulation

One aspect that has not received its due attention in the larger FRT risks and ethics’ discourse, is how police agencies in India and elsewhere often procure the same from private producers.
One aspect that has not received its due attention in the larger FRT risks and ethics’ discourse, is how police agencies in India and elsewhere often procure the same from private producers.

By Ameen Jauhar & Jai Vipra

In the US, Clearview AI gained international notoriety for the surreptitious manner in which it scraped large swathes of images from across the Internet to design a powerful facial recognition tool. Despite the violation of individual privacy en masse, the company quickly found a lucrative clientele, including several US federal and state agencies. At present, Clearview AI faces considerable legal heat with several lawsuits pending against it across the US, and even in other jurisdictions. Closer home in India, state surveillance has been a significant concern this year, especially in the backdrop of the allegations in the Pegasus issue. Private technology companies have been aiding law enforcement agencies in India in ramping up risky surveillance under a thick cloak of secrecy.

An emerging technology that is revamping surveillance apparatuses of the states in India is facial recognition (FRT). FRT is a system for automated matching or identification of faces usually using a database representing facial characteristics. Over the last few years,different state police forces in India have begun using it to identify suspects of a crime, monitor crowded areas during festival times for “habitual offenders”, and find missing children. In more extreme cases, like the reported use by the Lucknow police, FRT is even being deployed to identify women in distress through their facial expressions and, apparently to keep them safe.

One aspect that has not received its due attention in the larger FRT risks and ethics’ discourse, is how police agencies in India and elsewhere often procure the same from private producers. There are four main issues that arise from this unregulated role of private corporations in facilitating state surveillance apparatuses. First, there are privacy risks. FRT relies on vast amounts of datasets. It is unclear how these are being made available to private players. The public does not know if the government has entered into data sharing agreements for this purpose. The manner in which data is shared is inextricably linked to the notion of informational autonomy that the Supreme Court read in the fundamental right to privacy in the Puttaswamy judgment. There is a conspicuous absence of any information on what personal (including biometric) information is being shared and to what end under FRT procurement.

Second, it is unclear as to whether the role of private enterprises is merely to develop FRT, or to even aid in deployment and upkeep. This becomes crucial to determine if any surveillance functions of the state are inadvertently or incidentally transferred to a private citizen or entity. Surveillance is an exceptional function even for the state to perform, and certainly not one that can be legitimately delegated to another entity. With FRT, it is critical to determine whether the technology once procured is operated or managed by the developer, or comes completely within the control of state law enforcement. Such potential delegation of functions can also lead to unclear legal liability—who is to be held responsible if the technology is inaccurate, biased, or applied unjustly? The state or the private developer?

Third, the reason why issues around privacy and function scope of private enterprises even warrant examination is because there is an overall lack of transparency and accountability in the status quo. Large scale state surveillance is being deployed in the absence of any publicly available information on tendering and procurement. There is a lack of clarity on if there is even a bidding process, who is allowed to bid, the manner in which selection is made, the terms of reference around which such procurement contracts are issued, etc. In any other space of public sector procurement such blatant lack of transparency is actually unimaginable—with FRT, the process seems to have missed public or judicial scrutiny completely.

The final issue is that under such opacity, private profiteering will inevitably drive public policy in a contentious area like surveillance. Venture-capital funded FRT companies can and do provide deep discounts to lure a greater and more consistent clientele. Once inside an opaque system, it is unlikely that social pressure will rein in their efforts to proliferate the technology for surveillance. In the past two years, since the surge in the global conversation around FRT, several big names (Amazon, IBM, Microsoft, and most recently Meta) have claimed to impose moratoria on their in-house FRT programmes. However, this has come after each of these companies were found to be cooperating with numerous US and international organisations (including private sector entities) in deploying FRT. In India, start up companies developing such algorithms seem to have an active advocacy for greater surveillance.

An unfettered, unbridled private security sector has been a concern across the world for decades. Like the war industry, the surveillance industry is highly lucrative and unlikely to be checked through self-regulation. There are social and legal questions to be answered on the scope of participation by private enterprises, and to establish adequate checks and balances to protect constitutional and legal rights of the citizenry.

Jauhar leads the Centre for Applied Law & Technology Research (ALTR) team at Vidhi Centre for Legal Policy, and Vipra is senior resident fellow, ALTR   Views are personal

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