The Use of Live Facial Recognition Technology in Scotland: A New North-South Divide?

25 February 2020 by

Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland. 

Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.  

In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.  

Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities. 

The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.  

What is live facial recognition technology? 

By way of background, facial recognition is a general term for technology that can catalogue and recognise the human face. Typically, facial recognition does this by measuring the unique ratios between an individual’s facial features such as the eyes, nose and mouth.  

One of the most controversial uses of facial recognition technology is live facial recognition. The latter works by scanning our facial features – without our consent and possibly even our knowledge – to create a unique numerical code. If that numerical code matches an image on the police service’s “watch list”, the live facial recognition system will issue an alert to the police. Anyone can be included in this “watch list” and images can be taken from anywhere, even our social media.  

Where is it used? 

i) UK 

In the UK, the South Wales Police (“SWP”) and the Metropolitan Police Service (“MET”) have both faced legal challenges as a result of implementing the technology. 

In R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department, for example, it was held that the current legal framework was adequate and that the SWP’s use of the technology was consistent with the requirements of the Human Rights Act 1998 and data protection legislation. However, whilst the judge concluded that the current legal regime was not “out of kilter”, he also noted that the matter would likely require periodic review in the future (see the Blog’s coverage of the judgment here). 

Big Brother Watch and Baroness Jenny Jones are also currently considering their next legal steps against the MET following the introduction of the technology in some parts of London. It was first used in Stratford on the 10th of February and is now – as of last Thursday after only 2 hours’ notice on Twitter – being deployed in “key locations” in Westminster. 

In light of the above, the Sub-Committee’s report recommended that the Scottish Police Authority should review these legal challenges and consider how to mitigate similar challenges in Scotland. 

ii) Elsewhere 

The technology is not only controversial in the UK. In January, for example, the EU Commission was reportedly considering a 5-year blanket ban on the use of the technology in a leaked draft of a white paper on artificial intelligence. However, this was not mentioned in the final draft of the paper which was published last Wednesday. Instead, the EU Commission committed to carrying out a broad consultation involving Member States, civil society, industry and academics before introducing any concrete proposals to regulate the technology. 

Across the Atlantic, several cities – such as San Francisco, Somerville and Oakland – have also banned local law enforcement from using the technology. It is, however, currently being used in cities such as Chicago and Detroit. Earlier this month, US senators also introduced a bill – the Ethical Use of Facial Recognition Act – which would prevent the technology from being used at a federal level if it was enacted. Like the EU Commission’s proposals, the bill would establish a commission which would study the technology and propose guidelines for its use. An important caveat of the bill, however, is that police officers would still be permitted to use the technology if they have first obtained a warrant. 

Other countries which have introduced the technology include China, Brazil and India. 

The Sub-Committee Report’s Findings 

i) The Technology’s Inaccuracy [paras 77-103] 

There was substantial evidence in the report which illustrated that the current technology is extremely inaccurate, discriminatory, and ineffective.  

Most striking was the evidence exemplifying the “in-built” racial and gender biases inherent in the technology. Such biases exist because the machine-learning algorithms used in the technology inherit the gender, racial and socio-economic biases of their human creators (predominantly Caucasian males).  As a result, the machine-learning algorithms are more accurate towards Caucasian male faces. 

This finding was not surprising. Indeed, several academic studies have previously shown that the technology disproportionately misidentifies transgender and non-binary people, ethnic minorities, and young people.  

Similarly, there was an abundance of statistical evidence in the report which highlighted the technology’s inaccuracy. For example, the accuracy rate of the technology was only 2% when it was used by the MET in 2017, and only 9% when it was used by the SWP. It therefore misidentifies people at a much higher rate than it identifies them, leading to many “false matches” in practice. These will disproportionately discriminate against women and ethnic minorities, both of whom will be more likely to be stopped by the police and required to justify their presence in the surveilled area – even if they are innocently on their way to the supermarket. 

The above evidence begs the question: what effectiveness, if any, does the technology have? As we shall see below, that question is an important one from a human rights perspective when assessing the necessity and proportionality of its use.  

ii) Necessity and Proportionality [paras 104-117] 

The report subsequently considered whether it was necessary for the police service to introduce the technology, whether mass surveillance of the public by the police service was proportionate, and whether the public have trust in its use.  

Obtaining public confidence in the technology was first said to be crucial. That meant striking the correct balance between various human rights – namely the right to privacy, freedom of expression, and freedom of association under Articles 8, 10 and 11 of the European Convention on Human Rights (“the ECHR”) – and crime detection. If Police Scotland failed to do this, public confidence in the police service could diminish. Any proposals purporting to introduce the technology should therefore be “transparent and subject to public consultation”. 

However, some evidence suggested that, in any event, the use of the technology was not necessary or proportionate and was a breach of Article 8 of the ECHR. This is because the technology indiscriminately scans and captures images of our faces when we are within its view – using our sensitive data – without our consent and sometimes even without our knowledge. Other evidence suggested that our right to a fair trial under Article 6 of the ECHR would also be breached if the technology was ever used by the police service as a “fishing exercise” [see para 113]. 

That being said, some evidence in the report did suggest that the use of the technology could be proportionate if certain requirements were met. These included:  

  • a strong legal framework to ensure that it was only used when necessary; 
  • a narrow use to reduce the number of people being scanned; 
  • a restriction on the amount of time it can be used for; and 
  • a data impact assessment to consider its impact on human rights. 

In light of this, the Sub-Committee recommended that Police Scotland should properly assess the necessity, proportionality and parameters of the technology’s use before introducing it. They must also demonstrate that there is public consent for its use, which would presumably be obtained through a public consultation on the issue. 

Unsurprisingly, the Sub-Committee also emphasised the need for a robust legal and regulatory framework as well as the need for comprehensive human rights, equalities, community impact, data protection and security assessments to be carried out before the technology is ever introduced.  

iii) Impact on Human Behaviour [paras 144-160] 

The Sub-Committee also heard evidence in relation to the introduction of the technology at football matches, concerts, protests and marches in England and Wales. 

Whilst the views of police officers were mixed when asked to discuss the positives of the technology, it was clear that normal members of the public vehemently objected to it. Some individuals who were interviewed, for example, described the technology as “disproportionate, intimidatory, provocative, and counter-productive”.  

Evidence highlighted that such views could have a “chilling” impact on individuals’ willingness or ability to exercise their rights to freedom of expression and association. Indeed, an individual may decide against protesting on a particular issue if it means that they will have to surrender their sensitive data to the police via live facial recognition technology. And if we cannot freely exercise these rights without fear of mass surveillance, what use do such rights have? 

Conclusion 

It appears, then, that there is a new North-South divide in the UK. If you find yourself walking in some parts of London or Wales, for example, live facial recognition technology will now be able to scan your face without consent and you may even be subject to an on-the-spot identity check (particularly if you are a woman or an ethnic minority). In Scotland, however, you will not have to worry about this – at least for now.  

Police Scotland will instead engage in a much wider debate on the technology’s use before introducing it. This approach is welcomed as it rejects the notion that live facial recognition technology is an inevitable consequence of technological development and increasing levels of crime. And if the past decade has shown us anything, it is that a hands-off, reactive regulatory framework is an ineffective solution for rapid technological change.  

Not only that, but other countries and organisations are also adopting a cautious approach – such as the US and the EU Commission – in order to properly understand the technology. And to better understand the technology is to better protect our human rights, particularly the right to privacy, freedom of expression, and association. 

Euan Lynch is currently studying for the Graduate Diploma in Law while teaching English in Madrid and will commence the Legal Practice Course in July.

1 comment;


  1. Shaun Green says:

    I would rather have technology that can identify individuals that pose a threat such as terrorists and paedophiles than worry about my right to privacy. I have no right to stop someone in the street taking a photograph with me in it. This is civil liberties gone over the top. When the next terrorist attack happens like Westminster Bridge or Manchester Arena let’s hope the loss of life could not have been prevented by using technology. On your head be it left wing liberals!

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: