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.

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.