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Surveillance regulator issues guidance on police use of facial recognition

The Surveillance Camera Commissioner (SCC) has published best practice guidance for police forces in England and Wales regarding deployment of live facial-recognition technology - the first guidance to be published since the Court of Appeal overturned a ruling that South Wales Police’s use of the technology was lawful.

The SCC, Tony Porter, supports the police having legitimate access to surveillance camera systems, including live facial recognition, under conditions which fulfil ethical, legal and human rights considerations. These are laid out in his report, 'Facing the Camera'.

According to Porter, facial biometrics is distinct from other forms of biometrics such as DNA and fingerprinting because it allows biometric data to be obtained without the knowledge or consent or the subject, without the use of force, and on a massive scale (indiscriminately affecting people of no interest to the police). Facial-recognition technology is also a relatively novel technology and the technological processes differ between systems.

Images of faces constitute “sensitive” personal data under the Data Protection Act 2018. Given that so many people may have their sensitive data collected by live facial recognition, the SSC said that the technology needs a more detailed legal consideration than other police observation activities.

The report gives consideration to various obligations, such as the Data Protection Act, the Equality Act and the Public Sector Equality Duty.

Under Section 149 of the Equality Act, for instance, public authorities must work to eliminate discrimination and advance equality. This presents a serious challenge when using commercial facial recognition software, which has been demonstrated to perform particularly poorly when assessing the faces of women and people with darker skin. Police officers should take steps to establish whether risks of inconsistency exist in their software (as well as in their own conduct) and to mitigate these risks.

The SSC advises the establishment of a national procurement strategy to identify the most appropriate surveillance tools – live facial-recognition technology which does not amplify racial and gender discrimination – and lays out a method for assessing this technology for problems such as bias. The report also recommends that police forces which consider using the technology should develop mechanisms for providing independent ethical oversight of their decision-making and conduct before rolling out the technology.

“Over the seven years I have been Commissioner, I have continually said that the police should be able to use technology to keep us safe and secure, but this must be balanced against our civil liberties and the law,” said Porter. “The High Court ruled that South Wales Police’s use of [live facial recognition] was in accordance with the law, but this was later overturned by the Court of Appeal.”

“The guidance I’ve issued today will help forces who want to use [the technology] identify how to do so in accordance with the current legal framework. Where there is a proportionate need to deploy intrusive technology, it is right that the police have the guidance to do that – 'Facing the Camera' will go some way to help them before decisions are made to deploy.”

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