Just over a year ago, as a practitioner, I was involved in a number of conversations with clients and the Information Commissioner’s Office (ICO) relating to the use of Facial Recognition Technology (FRT). These conversations tended to be on behalf of clients operating in the leisure and health and fitness industries and related to the appropriateness of the implementation of the technology to facilitate access to their facilities.

The arguments in favour of introducing the technology tended to focus on sound and practical considerations, such as the security and health and safety of staff and other users and income protection in that, by substituting the technology for people for particular tasks, those people could be used more effectively (for example, in that they are able to provide health and fitness advice, rather than being used to monitor who entered and left the facility). Perhaps unsurprisingly, at the time, the ICO raised robust arguments against implementation, which tended to be based on whether the arguments in favour amounted to a lawful basis for processing the data accumulated by the technology.

These conversations continued to rumble on after I left practice and moved into my current academic role. However, three things were abundantly clear at the time: Firstly, FRT was here to stay, and would continue to permeate into different aspects of our lives, from leisure and health and fitness to crime control; Secondly, because of this, the Government and the ICO needed to decide how it was going to handle this new and pervasive technology; Thirdly, the debate was only just beginning. Although what I was involved in related to the relatively sterile environment of leisure and health and fitness (although of course important issues of general application were being raised); it did not compare to what was at stake when it came to the police using FRT and the implications this potentially has for our civil liberties; which brings me on to the present day, and two recent news stories on the police’s use of FRT, both of which could lead to a fight on the scale of which has not been seen since Rocky versus Ivan Drago!

A Royal Rumble-esque scrap

On the 24th of January, the Metropolitan Police Service (MPS) announced that it will deploy FRT ‘at locations where intelligence suggests we are most likely to locate serious offenders’. According to the MPS the cameras will be focused on a small, targeted area to scan passers-by. This announcement was made against the backdrop of significant controversy about the use of FRT by the police and, as a result, has inflamed the situation…cue a Royal Rumble-esque scrap between the police and civil liberties groups.

In September 2019, in R (Bridges) v The Chief Constable of South Wales, the High Court ruled that the use of FRT by South Wales Police was, in those specific instances, lawful (the case was brought by Ed Bridges, a member of the public, who believed his image had been captured on FRT from a police van whilst he was shopping in Cardiff city centre). Liberty, which is appealing the decision on behalf of Mr Bridges (the appeal is due to be heard in June 2020), has said that the MPS’s deployment of FRT is a ‘dangerous and sinister step, pushing us towards a surveillance state in which our freedom to live our lives free from state interference no longer exists.’ Big Brother Watch has also waded into the fight, fists flying, stating that it will challenge the move, ‘including by urgently considering next steps in our ongoing legal claim against the Met and the home secretary’.

Therefore, it was perhaps a little surprising (or perhaps not) to discover (when the BBC broke the story) on 28 January that South Yorkshire Police had, in 2018, used FRT with British Land, the private landlord that owns Sheffield’s Meadowhall shopping centre, to identify ‘serious’ offenders and a vulnerable missing person. According to the BBC report, South Yorkshire Police disclosed last August that it had ‘supported’ the scheme to understand ‘opportunities associated with this technology [FRT].’ Again, this has added fuel to the fire, with Big Brother Watch stating that such partnerships between the police and private organisations are ‘hard to monitor’ which ‘means that this is even less accountable to the public and difficult to find details of.’ Tony Porter, the Surveillance Camera Commissioner for England and Wales (SCC), has stepped in to the fight, by calling for Government inspections into police use of FRT and for the introduction of a ‘very clear oversight mechanism.’ Indeed, Big Brother Watch, Amnesty International, and the House of Commons Science and Technology Select Committee have all stated that FRT should be halted until ‘proper regulation’ that ‘explicitly regulates’ the technology is in place.

How will the ICO referee this?

In relation to the Meadowhall trial, although the ICO has said that it considered it, it decided to close the case without taking any further action. However, the Information Commissioner has recently stated that Public support for the police using facial recognition to catch criminals is high, but less so when it comes to the private sector operating the technology in a quasi-law enforcement capacity. We are separately investigating this use of FRT in the private sector, including where FRT is used in partnership with law enforcement. We will be reporting on those findings in due course.’ Tony Porter, as the SCC, has requested a meeting with South Yorkshire Police to answer questions around the trial, so it looks as though this fight is definitely heading for round two!

In relation to the MPS’ deployment of FRT, the ICO has been much more vocal. On the 31st of October 2019 The Information Commissioner issued an Opinion on The use of live facial recognition technology by law enforcement in public places. The Opinion states that there are well-defined data protection rules which police forces need to follow before and during deployment of FRT, and recognises the high statutory threshold that must be met to justify the use of the technology, and demonstrate accountability, under the UK’s data protection regime (including the Data Protection Act 2018 and, of course, the GDPR). According to the Opinion, this threshold is appropriate considering the potential invasiveness of FRT. It also sets out the practical steps police forces must take to demonstrate legal compliance. According to the Commissioner, the Opinion is significant because it brings together the findings in the ICO’s investigation into the use of FRT by the MPS and South Wales Police, the current landscape in which the police operate, and the High Court’s judgment in R (Bridges). Significantly, in a recent blog post, the Information Commissioner stated that:

‘the [R (Bridges)] case was a judgment on specific examples of [FRT] deployment. It is my view that [the] judgment should not be seen as a blanket authorisation for police forces to use [FRT] systems in all circumstances. When [FRT] is used, my Opinion should be followed. My Opinion recognises there is a balance to be struck between the privacy that people rightly expect when going about their daily lives and the surveillance technology that the police need to effectively carry out their role. Therefore, it makes clear that police forces must provide demonstrably sound evidence to show that [FRT] is strictly necessary, balanced and effective in each specific context in which it is deployed.’

In the immediate aftermath of the MPS’ announcement that it intended to deploy FRT, the ICO issued a statement in response which says that although the MPS ‘has incorporated the advice from our Opinion into its planning and preparation for future FRT use…the ICO will continue to observe and monitor the arrangements for, and effectiveness of, its use.’ Perhaps more tellingly though, in echoing the Commissioner’s Opinion, the statement once again calls on the Government to introduce a statutory and binding code of practice for FRT ‘as a matter of priority’ that would build on the standards established in the Surveillance Camera Code. To conclude, in the words of Elizabeth Denham, her Office’s work in this area is clearly far from over, as serious concerns continue to be raised about the use of a technology and its reliance on huge amounts of sensitive personal information. There is no doubt we are heading for another round as this fight is destined to continue for a long time!

This post will appear in the June issue of Communications Law and is published here with permission and thanks.

Dr Peter Coe, Barrister and Lecturer in Law, School of Law, University of Reading; Research Associate at the ILPC and; Editor-in-chief of Communications Law.

Twitter: @pcoelaw