Abstract
Live automated facial recognition technology, rolled out in public spaces and cities across the world, is transforming the nature of modern policing. R (on the application of Bridges) v Chief Constable of South Wales Police, decided in August 2020, is the first successful legal challenge to automated facial recognition technology in the world. In Bridges, the United Kingdom’s Court of Appeal held that the South Wales Police force’s use of automated facial recognition technology was unlawful. This landmark ruling could influence future policy on facial recognition in many countries. The Bridges decision imposes some limits on the police’s previously unconstrained discretion to decide whom to target and where to deploy the technology. Yet, while the decision requires that the police adopt a clearer legal framework to limit this discretion, it does not, in principle, prevent the use of facial recognition technology for mass-surveillance in public places, nor for monitoring political protests. On the contrary, the Court held that the use of automated facial recognition in public spaces – even to identify and track the movement of very large numbers of people – was an acceptable means for achieving law enforcement goals. Thus, the Court dismissed the wider impact and significant risks posed by using facial recognition technology in public spaces. It underplayed the heavy burden this technology can place on democratic participation and freedoms of expression and association, which require collective action in public spaces. The Court neither demanded transparency about the technologies used by the police force, which is often shielded behind the “trade secrets” of the corporations who produce them, nor did it act to prevent inconsistency between local police forces’ rules and regulations on automated facial recognition technology. Thus, while the Bridges decision is reassuring and demands change in the discretionary approaches of U.K. police in the short term, its long-term impact in burning the “bridges” between the expanding public space surveillance infrastructure and the modern state is unlikely. In fact, the decision legitimizes such an expansion.
Highlights
Live automated facial recognition technology, rolled out in public spaces and cities across the world, is transforming the nature of modern policing in liberal democracies and authoritarian regimes alike
The High Court held that: 1) the South Wales Police’s use of automated facial recognition was not in accordance with law for the purpose of Article 8(2) of the European Convention on Human Rights (ECHR); 2) the Data Protection Impact Assessment did not comply with the Data Protection Act 2018; and 3) the South Wales Police failed to satisfy its public service duty under section 149 of the Equality Act 2010 in not recognizing the risk of a disproportionate impact upon women and minorities of the AFR technology
Bridges concerned the legality of facial recognition technology under specific legislation in the U.K., it is emblematic of wider concerns worldwide around the ad hoc regulation and discretionary use of automated facial recognition technology by police
Summary
“There is nothing in the Court of Appeal judgement that fundamentally undermines the use of facial recognition to protect the public. If law enforcement use of facial recognition technology is not comprehensively regulated, the ad hoc and fragmented regulatory framework will reduce the predictability and consistency of police action It will enable police departments, as well as other public and private agencies, to share citizens’ information among themselves with little transparency or oversight. In October 2019, it brought an action against the US Department of Justice, the FBI, and the Drug Enforcement Agency, claiming that the public had a right to know when facial recognition software was being utilized under the Freedom of Information Act. The case was filed after the ACLU made a freedom of information request in January of 2019, and the DOJ, FBI, and DEA failed to produce any responsive documents.142However, it remains to be seen whether these challenges will result in more stringent, comprehensive regulation of police use of. [Vol 22:284 facial recognition technology, or whether the current ad hoc and fragmented regulatory framework will continue
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