Insights

20/06/19

Facial recognition technology: a legal challenge in Orwell’s backyard

Nearly 70 years after George Orwell’s 1984 first showed the world a London under mass surveillance, the UK is seeing its first legal case against facial recognition technology.

Cardiff resident Ed Bridges has brought a crowdfunded action (backed by the civil rights group Liberty) against the South Wales Police for capturing his biometric data on two occasions. The first was in December 2017, when he ducked out of the office to get some lunch… and happened to cross paths with a police van using automated facial recognition technology to scan thousands of pedestrians on the main street. The second was when he attended a peaceful protest against the Cardiff Arms Fair, where he felt the technology was being used to “intimidate people.”

Bridges’ argument is that this use of facial recognition technology, without his consent and while he was doing nothing wrong, breaches his privacy and data protection rights. The South Wales police have countered that their use of the technology was both “lawful and proportionate.”

While the judgement is yet to be handed down, Bridges’ case highlights the increasing privacy debate around facial recognition technology and the need for balanced regulation and implementation. This is particularly the case for Australia. We’re not yet at China’s level of facial recognition technology adoption, where its ‘Sky Net’ system includes the technology in millions of cameras around the country. However, we’re still seeing its adoption at airports, in the education sector, and in “smart city” projects.

Currently, its use is governed by our state and federal privacy legislation, which classifies biometric data as “sensitive information” worthy of higher protection along with information such as a person’s race, health information, and political or religious beliefs. However, the focus may increase with the Identity Matching Services Bill 2018 (IMSB), which aims to create ‘Capability’, a searchable hub pooling federal and state databases that includes information such as our drivers’ licences and passport photos. It’s set to be operated by the Department of Home Affairs, alongside the Australian Passports Amendment (Identity-matching Services) Bill 2018, with both Bills intended to support new biometric face-matching services.

The draft legislation has been under review since February 2018, however, progress has stalled since the inquiry by the Parliamentary Joint Committee on Intelligence and Security lapsed when the House of Representatives was dissolved in April 2019.

In the meantime, Australia can continue to watch the debate play out in Orwell’s homeland.

Authors: Michael Caplan, Erica Chan, Meaghan Powell