Your face is not new to me – Regulating the surveillance power of facial recognition technologies

Abstract

Facial recognition technologies (FRTs) represent one of the cutting-edge applications of artificial intelligence and big data for surveillance purposes. The uses of these biometric technologies are widespread in our cities. However, they may result in serious abuses against the rights of people and minorities, or even in new kinds of mass surveillance. The article focuses on "real-time" and "live" use by law enforcement authorities, one of the most discussed deployments of FRTs. The analysis addresses, from a constitutional point of view, whether banning these technologies is inevitable, or whether it is possible to regulate them in a way that allows their use while protecting the fundamental rights at stake and preserving democratic order and the rule of law. The principle of proportionality is the standard for defining appropriate regulatory measures. The article starts off by providing an overview of how FRTs work and some of the consequent ethical, technical, societal and legal concerns that arise. It then provides a critical analysis of EU data protection legislation and the AI Act proposal to examine their strengths and shortcomings in addressing the proportionate use of FRTs. Issue 1This paper is part of Future-proofing the city: A human rights-based approach to governing algorithmic, biometric and smart city technologies, a special issue of Internet Policy Review guest-edited by Alina Wernick and Anna Artyushina.

The grey-zones of public-private surveillance: Policy tendencies of facial recognition for public security in Brazilian cities

“…Despite the heated discussions over its use, the FRTs are still deployed. Recently, the critics pointed out that the proposed AI Act did not establish proper guardrails to sufficiently address the risks to fundamental rights posed by this technology (Mobilio, 2023).…”

“…While in Latin America the implementation of FRTs is increasing, in recent years, some US cities and states, and European countries, have achieved advancements in establishing constraints regarding FRT based on the understanding that they vio-late privacy and the presumption of innocence, and that the technology boosts discrimination against marginalised groups, among many other problems (Kak, 2020;Laperruque, 2022;Mobilio, 2023). With this dual scenario -increasing impetus for restrictions in the global north and lack of regulation in the global south -in mind, in an initiative promoted by Brazilian civil society called #SaiDaMinhaCara (Get Off My Face), more than fifty lawmakers from different parties acting in the municipal or state legislature have introduced bills to ban facial recognition in public spaces (Coding Rights, 2022).…”

Future-proofing the city: A human rights-based approach to governing algorithmic, biometric and smart city technologies

“…The scope of possible interferences in rights to privacy or data protection on the grounds of national security or law enforcement is determined by the proportionality principle (Brown & Korff, 2009;Dalla Corte, 2022). In his article, Mobilio (2023) evaluates the potential guardrails needed to allow for the use of facial recognition technology by law enforcement authorities through the lens of proportionality. He arrives at the conclusion that the data protection law and the AI Act proposal do not offer sufficient safeguards for fundamental rights risks associated with facial recognition and its disproportionate use in policing.…”

“…As demonstrated by articles by Hacker & Neyer (2023), Lane (2023a), Wernick et al (2023) and Mobilio (2023), there is a need for further legal and socio-legal research on the systematisation and coherence of European law-and policy-making concerning smart cities. It is of value to follow the developments on HRBA in cities relating to cities' sovereignty to govern technology and emerging digital rights.…”

Identifying potential emerging human rights implications in Chinese smart cities via machine-learning aided patent analysis

“…In comparison to China, Europe has strong constitutional safeguards that protect fundamental rights (Geller, 2022). These rights protections also apply to smart cities, which is reflected in the European legal literature that lays out the legal context that grants protection for fundamental rights (Hacker & Neyer, 2023;Lane, 2023;Mobilio, 2023;Wernick et al, 2023).…”