Facial Recognition Technology, the Metropolitan Police and the Law

This blog was first published on Policing Law Blog

The Metropolitan Police Service (MPS) is not immune to surveillance related controversy.  From its role in the phone hacking scandal, to the sexual exploitation of activists by its ‘Special Demonstration Squad’, it may be no exaggeration to say that the force has attracted more criticism for its ill-fated surveillance activities than any other in recent years.  Little wonder, then, that its decision to roll out live facial recognition technology (FRT) in public spaces has raised eyebrows.  The MPS is introducing FRT in the face of fierce criticism, threatened legal action, and an independent evaluation, by Professor Pete Fussey and Dr. Daragh Murray of the Essex University Human Rights Centre, which dismantled almost every aspect of the methodology underpinning their ‘trial’ of the technology with forensic precision.

This is certainly a bold move, as FRT is deeply divisive.  Is it legal?  The MPS have published a ‘Legal Mandate’ for their use of live FRT.  It identifies the general powers of a constable at common law to fulfil his basic duties as the legal basis for using the technology, and goes on to identify several statutes, secondary legislation, and internal policy documents that regulate how the MPS will use FRT.  Others have considered the extent to which live FRT complies with existing statutory regulations.  Here, the focus is on evaluating the common law as an adequate legal basis for using FRT.

To support its Legal Mandate, the MPS relied heavily on a decision of the High Court of Justice in R. (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) – where a campaigner from Cardiff failed to convince the Court that his human rights had been violated after his face was scanned on two occasions by the South Wales Police.  This decision seems to have emboldened the MPS to operationalise FRT, relying solely on the basic common law powers of a constable to protect life, prevent and detect crime, and bring offenders to justice as the legal basis.

Facial_recognition_free

There is no question that Bridges supports the MPS’s position.  In rejecting Mr Bridges’ contention that there must be some specific statutory basis for the use of live FRT, Haddon-Cave LJ and Swift J relied on the following passage from Rice v Connolly[1966] 2 QB 414 at 419:

“[I]t is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal damage.  There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”

Drawing on more recent authorities in R (Wood) v Commissioner of Police of the Metropolis [2010] 1 WLR 123 and R (Catt) v Association of Chief Police Officers [2015] AC 1065, the High Court held that this general power of the police covers the use, retention, and disclosure of imagery of individuals for any of the duties articulated in Rice.  Haddon-Cave LJ and Swift J observed that, in his leading majority judgment in Catt, Lord Sumption held that there is an important distinction between ‘intrusive’ and ‘non-intrusive’ methods of gathering personal information.  Live FRT was the latter and only the former fell outside the common law powers of the police.  The High Court ruled that the distinction turned on whether there was a physical intrusion with a person’s rights vis-à-vis his or her home or interference with his or her bodily integrity [74].  It seems that only these forms of ‘physical’ intrusion require a statutory legal basis.

Finger_printing

This is a significant finding, as it permits the police to use new overt surveillance technologies like live FRT operationally, without Parliament authorising this use.  It puts the police collection and processing of biometric data by FRT in a separate category to other forms of biometric surveillance, such as DNA and fingerprint collection.  These tend to require ‘physical intrusion’ and, as such, have a statutory legal basis.  The effect of the High Court’s interpretation of these cases is that statutes are only relevant in so far as they place limitations on how live FRT is used by the police.  Thus, the police are free to trial and use these new technologies in the absence of the democratic mandate that legislation passed by Parliament provides.

If this is the case, there is no need for police live FRT to be approved by our elected representatives, usually following robust debate on the implications of its use, and consideration of expert evidence scrutinised by Select Committees.  The decision to use live FRT is a matter for police to decide for themselves; their discretion on this matter is fettered only by the limits of their common law powers which, as the Court in Bridges acknowledged, are expressed in ‘very broad terms’ [73].

It is difficult to fault Haddon-Cave LJ and Swift J’s interpretation of recent authorities in Wood, and Catt. These authorities do suggest that the general common law powers of the police set out in Rice extend to the collection, use, retention and dissemination of facial images.  The problem is that, in interpreting the common law powers of the police so broadly, these authorities have sent the law down a wrong path.

Notwithstanding the rulings in Catt and Wood, it is not clear that the passage in Rice was conferring a broad discretion upon the police in this way.  In Rice, the appellant successfully argued that the offence of obstruction of justice was not made out in circumstances where he merely refused to provide his name or other assistance to a police constable in the course of his investigation into a series of breaking offences.  Lord Parker CJ held that police constables have a duty to take steps which appear necessary to prevent and detect crime.  However, as Val Aston notes, this finding was categorical.  Lord Parker CJ also held that there are clear limits on this power; one being that citizens are not under a general legal duty to assist the police by providing them with information.  This was the unambiguous legal principle of Rice.

FRTIt is one thing to hold that the common law power to prevent crime and bring offenders to justice justifies police asking for the identifying particulars of a person seen in the vicinity of reported criminality (even though the person may be under no legal obligation to comply with the request).  It is quite another for this same power to support the use of myriad biometric and/or algorithmic technologies, which facilitate the use and collection of ever-more sensitive personal information by public authorities.  Live FRT enmeshes physical and informational forms of surveillance by collecting information from the physical body of the person and breaking this down into an information structure, which can then be processed.  The High Court’s distinction for fleshing out the scope of the common law powers of the police, between physical and informational intrusions, seems unfit for this novel policing landscape.  It has allowed the powers of the police enunciated in Rice to be extended too far.

For now, the MPS can rely on broad common law powers to use live FRT, but its decision to do so may prove unwise.  Bridges was qualified and is subject to appeal.   The Court acknowledged that the legal framework governing live FRT should be strengthened further and, since this judgment, the Information Commissioner has called for the use of FRT to be placed on a statutory footing.  In recent years, the European Court of Human Rights has also expressed concern that the common law powers of the police are so broad as to create a risk of ambiguity or extensive interpretation (See S and Marper v United Kingdom [2008] ECHR 1581 at [99]; Catt v United Kingdom [2019] ECHR 76 at [96]-[99])

We are still at an embryonic stage in our efforts to regulate the police use of algorithms.  Given the legal uncertainty, it is curious that the MPS has chosen this moment to begin incorporating FRT into its operational surveillance arsenal.  It may soon find itself on the wrong side of the law.

JOE PURSHOUSE

Joe PurshouseAbout the author: Joe Purshouse is a lecturer in criminal law at the University of East Anglia. His main areas of interest focus on the human rights of those subject to the criminal process, with a particular emphasis on privacy.  His PhD research examined the extent to which the privacy interests of those subject to the criminal process are recognised and afforded adequate protection in England & Wales.

 

 

An Independent Investigative Mechanism: Identifying Ways To Combat Impunity In Georgia

By Mariam Uberi

According to a number of civil society and human rights commentators, Georgia requires an effective independent body to deal with the investigation of torture perpetrated by law enforcement officials.

Between 2013 and 2015, the Public Defender’s office made 58 referrals to the General Prosecutor’s office to investigate alleged ill treatment of prisoners either by the police or prison staff. Some reports indicate that the Prosecution office has either dropped some investigations or did not provide any information during the course of the investigation.

In 2016, the number of alleged acts of ill treatment committed by the police was higher than that perpetrated by prison staff. The number of referrals for investigations into ill treatment in prisons dropped by one third. Reportedly, only two of 173 allegations of ill treatment perpetrated by police were brought to the court.

These statistics raise serious questions around whether the investigative powers vested to the State security services, the Ministry of Corrections and the Ministry of Internal Affairs lack adequate guarantees of independence and impartiality to address legal wrongs by its public authorities. Further, the Public Defender’s office and various UN human rights bodies have highlighted trends of either dismissing allegations of ill treatment against state agents or instigating charges that carry lesser sentences.

This post will review the national legislative framework on torture and ill treatment and how it is implemented. It will then provide an overview of pertinent human rights obligations and will review a draft law on independent investigative mechanisms aimed at ending impunity by law enforcement agents.

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Police are using big data to profile young people, putting them at risk of discrimination

By Daragh Murray and Pete Fussey

This blog originally appeared on The Conversation

Amnesty International has raised a series of human rights issues in connection with the “gang matrix” developed and run by London’s Metropolitan Police, in a recent report. According to the report, appearing on the database could affect the lives of 3,806 people, 80% of whom are between 12 and 24 years old.

There are no specific details about how the matrix operates and is used by police. It exists, at least in part, to address the difficulties in policing gang activities across different districts. But it’s suspected that – because of government data sharing – appearing on the database will “follow” young people around, affecting their access to housing, education or work.

The Met said in a statement, “The overarching aim of the matrix is to reduce gang-related violence and prevent young lives being lost”, but added that it was working with Tottenham MP David Lammy, Amnesty International and the Information Commissioner’s Office to “help understand the approach taken”.

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A Bad Decision from GTMO: Why the Commission Lacks Jurisdiction over 9/11 Defendants

By Tara Van Ho

This week, US courts issued two important cases for international law, in the areas of business and human rights and the laws of armed conflict. First, the US Supreme Court’s Jesner v. Arab Bank decision foreclosed the use of the Alien Tort Statute to hold corporations accountable for their role in violations of human rights. Then, the US military commission at Guantanamo Bay found it had personal jurisdiction over the 9/11 defendant in US v Mohammad, et al. To do this, the commission had to determine an armed conflict existed between the US and Al Qaeda on 9/11.

Both cases significantly warped international law.

I’ll address both cases through a series of posts here, at Nadia Bernaz’s Rights as Usual, and on my own blog. In this post, I’ll address issues with the most significant decision of the Mohammad judgment: the finding of the commission that on 9/11 the US was engaged in an armed conflict.

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Vicarious Trauma of the Private Counter-Terror Workforce: Extending the Duty of Care

By Vivian Ng

Communities used to gather on street corners, sidewalks, parks and public squares. Today, social media platforms are increasingly the forum of choice for individuals seeking to express themselves, communicate, interact, organise, and even mobilise. These online platforms are today’s public square, where free exchange and development of opinions and ideas can happen. However, there are concerns that social media has also become a forum for terrorists, racists, misogynists, or child abusers to thrive. As a result, and particularly in light of recent terror attacks, there is pressure on social media companies to be more proactive in preventing their platforms from being used to radicalise and incite violence. In response, social media companies are investing in more resources to moderate content on their platforms, particularly by expanding teams of content moderators. A critical reflection of the human rights implications engaged by this evolving role and the responsibility of technology companies is necessary. This post will focus on one specific element of the wider debate: an interrogation of the duty of care owed to the so-called ‘private counter-terror workforce’.

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“People just don’t get it” an interview with Kade Crockford of the ACLU of Massachusetts about why surveillance issues aren’t getting the attention they deserve

By Ajay Sandhu 

The precarious state of privacy often fails to stir public attention. For example, the Investigatory Powers Act (IPA), a piece of legislation granting police and intelligence agencies sweeping surveillance powers in the UK, is said to have passed into law “with barely a whimper.” What explains this lukewarm response? How does the US install bulk surveillance programs like Total Information Awareness (TIA) or the UK pass privacy threatening bills like the IPA (sometimes called the “snooper’s charter”) without receiving the level of attention that one might expect from a society which claims to value privacy rights?

To help answer this question, I spoke to Kade Crockford, the director of the Technology for Liberty Program at the American Civil Liberties Union of Massachusetts (ACLUM). I spoke to Crockford because of her expert knowledge on issues related to privacy, security, and surveillance as well as her recent experience leading a campaign against the Boston Police Departments’ plan to buy social media spying software. Crockford played a central role in the pro-privacy advocacy which likely encouraged the Boston PD to scrap their plans. I thought that Crockford could offer insights into why surveillance practices aren’t earning a critical response and how to reverse this trend. Continue reading

The Police’s Data Visibility Part 2: The Limitations of Data Visibility for Predicting Police Misconduct

By Ajay Sandhu

In part 1 of this blog, I suggested that raising the police’s data visibility may improve opportunities to analyse and predict fatal force incidents. In doing so, data visibility may offer a solution to problems related to high numbers of fatal force incidents in the US. However, data visibility is not without limitations. Problems including the (un)willingness of data scientists and police organisations to cooperate and the (un)willingness of police organisations to institute changes based on the findings of data scientists’ work must be considered before optimistically declaring data visibility a solution to problems related to fatal force. In this blog, I discuss two addition limitations of data visibility, including low-quality data and low-quality responses to early intervention programs. Both are problems related to the prediction and intervention stages of using data to reduce fatal force incidents. Future blogs can discuss issues related to the earlier stages of using data to reduce fatal force incidents such as collection and storage of data about police work.

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The Police’s Data Visibility 1: how data can be used to monitor police work and how it could be used to predict fatal force incidents

By Ajay Sandhu

Editors note: This is the first of a two-part blog post examining the potential impact of data visibility on law enforcement.

The Counted, Fatal Force, and Mapping Police Violence websites each collect, store, and display data about people killed by police in the United States. These websites are just a few of the emerging platforms designed to address the significant gap in information left by US police organisations’ failure to create, maintain, and publically disclose data about “fatal force” incidents. When visiting any of the three websites mentioned above, visitors can access in-depth statistics, charts, graphs, and maps, which provide details about the number of fatal force incidents that have occurred, their locations, the identity of officers involved, and the demographics of victims. The availability of this information has solicited questions about if and how digital data can address persistent problems related to a lack of transparency and accountability in policing, and the lack of information about fatal force incidents:

  • Can data enable new opportunities to scrutinize fatal force incidents?
  • Can data provide an opportunity to discover trends associate with fatal force incidents?
  • Can data analysis provide the police with the knowledge required to reduce fatal force incidents?

This two-part blog focuses on the last question by considering the opportunities and limitations of using digital data to monitor police work, document fatal force incidents, and create intervention programs designed to reduce fatal force incidents.

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Data Driven Policing: Highlighting Some Risks Associated with Predicting Crime

By Ajay Sandhu

The Human Rights, Big Data and Technology Project (HRBDT) recently made a submission to the UK Home Affairs Committee inquiry into ‘Policing for the future: changing demands and new challenges’. The submission summarized the opportunities and risks associated with the police’s adoption of ‘data driven technologies,’ which aid the bulk collection, storage, and analysis of data about persons, places, and practices. Data driven technologies can improve the efficiency of police work by offering law enforcement agencies methods of analysing crime data and generating predictions about crime that is yet to take place. For example, police can use data driven technology to make decisions regarding the most-effective allocation of scarce police resources. However, existing research indicates a series of risks that must be considered when adopting data driven technologies. This submission highlights three risks associated with data driven technologies, focusing on: the quality of the input data, the potential for discriminatory decision-making, and privacy harms. This blog recaps the conclusion of our submission by highlighting the risks associated with data driven technologies used to predict crimes.

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Policing and its relationship with Human Rights

By Graham Dossett

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Recent global images of police brutality provide good reason to cause us to pause and reflect.  Policing need not be unnecessarily violent.  In most cases, in reality, police officers are ordinary members of civil society who have some additional powers and responsibilities in order to allow them to achieve their purpose in circumstances of last resort.  There is absolutely no reason why police and security force personnel cannot treat everyone they deal with, in any circumstance, lawfully and with dignity and humanity.  To do otherwise can be seriously counterproductive.

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