Study Suggests Existing Laws Sufficient for Regulating Live Facial Recognition in Public Spaces

New research from Brunel University London explains why the use of live facial recognition (LFR) technology by law enforcement authorities does not require new legislation. It outlines the UK laws, policies and guidelines that protect us from any potential harm and reinforces how it keeps us safe and helps fight crime.

Facial recognition technology has become an integral part of everyday life. Many of us use it to unlock our mobile phones and tablets, and it has eliminated the need to input details and passwords manually for things like online banking and checks at the border.

Dr Asress Gikay, a senior lecturer in AI, Disruptive Innovation and Law at Brunel, explains how LFR works alongside biometric data – physical, physiological and behavioural data. “Through live facial recognition artificial intelligence (AI) software, the police compare, in real-time, biometric facial features from an image captured by a camera with existing images of people on a police watchlist. The watchlist contains images of those wanted by the police and is created for live facial recognition systems,” he said.

Some politicians and privacy rights campaigners have raised concerns about the impact of LFR on the rights of individuals including privacy rights, and there are now growing calls for a complete ban on the use of LFR by law enforcement authorities and private companies.

In his new paper, published in the Cambridge Law Journal, Dr Gikay analyses the existing laws, policies and procedures that are followed by UK law enforcement authorities in deploying LFR. He argues the current legal framework is adequate enough to protect the public from any potential harm, and he does not believe that there is a need for radical legal reform.

“The existing legal framework tackles most of the risks that are identified with LFR, which includes privacy law, data protection law and civil liability law,” said Dr Gikay.

In the paper, he also highlights the benefits of LFR technology in public spaces where the faces of thousands of people can be seen and captured.

“The technology aids law enforcement authorities in identifying and locating suspects and vulnerable people on a watchlist and significantly contributes to criminal investigations and public safety,” he said.

The law, privacy and live facial recognition technology

Dr. Gikay explains that common law gives police the power to gather and retain evidence, including through surveillance, without a specific search warrant, for the purpose of investigating crimes or preserving public safety.

He argues that this law is general enough to cover any kind of method that enables the gathering of evidence, as long as it does not involve intrusive surveillance – a surveillance of private property such as homes and vehicles leading to the acquisition of private information.

Another legal framework that Dr Gikay discusses is privacy law, which is implemented through the Human Rights Act 1998. “The law says that we cannot interfere with a person’s private life, which includes their home, but privacy rights can be taken away if there is a legitimate reason specified by the law and the method that is being used is proportionate to the objective that is trying to be achieved,” said Dr Gikay.

“The police are required to assess the proportionality of using the technology at all times, allowing only necessary and proportionate interference with the right to privacy for justifiable reasons.

“One of these legitimate reasons is investigating crimes or preserving public safety. The law clearly recognises that the police can take away our privacy rights as long as it is not disproportionate.”

Dr Gikay also stresses the importance of limiting LFR to locations where members of the public have lower expectations of privacy. “Deployment space must be justified based on the reasonable likelihood of the people on the watchlist being in that area,” he said.

There are calls for greater transparency when LFR is being used in public places, but Dr Gikay argues that the law relating to surveillance does not require transparency that may undermine policing operations.

“If the police are pursuing a legitimate aim that falls within the ambit of the European Human Rights Convention, then they do not need to adopt a transparency that could defeat the purpose of using the technology,” he said.

“It is sufficient to inform people on the spot that a surveillance operation is taking place and for the authority conducting the surveillance to enable people to exercise their right to hold authorities accountable if needed, but people do not need to be given advance warning of surveillance via social media or by any other means.”

He explained that if criminals are told that LFR technology is going to be used in a certain location, then they will avoid those places, and the police will not be able to catch them.

The facial recognition expert explains that there are a number of practical safeguards, policies and guidelines that the police have implemented to ensure that the technology is used in a proportionate manner.

Besides privacy law, Dr Gikay also outlines other laws that protect us from LFR misuse. “Data protection law prescribes conditions under which personal data can be processed, including biometric data, and civil liability law allows people to claim compensation if the technology is used in such a way that it causes harm,” he said.

Dr Gikay agrees that LFR technology has potential risks, but he argues that the actual risk of harm, such as the discriminatory impact on specific demographics, is yet to be demonstrated by evidence from actual practice.

In October 2023, the Metropolitan Police identified 149 suspects of retail crimes using a retrospective facial recognition system. Dr Gikay explains that the result is significant, as retail businesses are crucial to the UK economy, creating a job for one in 10 Londoners. Additionally, these crimes lead to the loss of an estimated £1.9 billion in revenue while involving widespread abuse of retail workers. “The evidence suggests that facial recognition technology brings more benefits than harm, and it seems that the UK public increasingly recognises it,” he said.

There are calls for new laws to be established for LFR, but Dr Gikay strongly opposes the proposals. “We cannot reform the law without evidence, and I have found no evidence from the police’s use of LFR in the UK that justifies prohibiting the technology or enacting statutory law,” he said.

Proposed minor adjustments to live facial recognition

The AI expert agrees that there are some adjustments that need to be made to the existing legal framework around LFR, but he affirms that it does not require parliamentary legislation.

“One of my proposed adjustments would be to have a clear national policy that states that the technology must not be used in public spaces to pursue minor crimes,” he said.

“We need to maintain a balance and proportionality between using the technology and the types of crimes that are being investigated.”

“Excluding certain offences from warranting the deployment of LFR technology is necessary, and it should be reserved for severe and high-priority crimes with clear implications for the safety of the public.”

He explains that a national policy could be achieved through a police force’s local policies, as opposed to changing legislation. “Changes to parliamentary law take a long time to process, and minor adjustments can be made without this,” he said.

“The Court of Appeal has already said that we do not necessarily need statutory law to deal with these matters and that local policies would be sufficient.”

Although Dr Gikay states that there are some adjustments needed to ensure that LFR is used effectively without ignoring the rights of people, his overall argument is that we do not need parliamentary intervention at this point.

“There are currently no significant legal loopholes in the existing legal frameworks governing the use of LFR technology by the police that warrant substantial legal reform,” he said.

“Live facial recognition has a significant role in ensuring public safety on a mass scale and helping law enforcement officials locate criminals on a watchlist.

“If supplemented by appropriate guidance and policies, our existing legal frameworks can be interpreted to address the challenges posed by LFR technology in law enforcement.”