International Human Rights Weekly News Roundup

by Pauline Canham

In focus

Police violate human rights in their use of facial recognition technology

Facial_recThree senior judges in the UK Court of Appeal have ruled that Police in South Wales violated the right to privacy under the European Convention on Human Rights, through the unlawful use of facial recognition technology.  The ruling comes after a legal challenge by civil rights group, Liberty, who took up the case of a man whose face was scanned as he was Christmas shopping in Cardiff in 2017 and attending an anti-arms protest in 2018.  Mr Bridges, who is a civil rights campaigner, had argued that his human rights were breached when his biometric data was used without his consent.

Facial recognition identifies people through distinguishable features on the face, and compares them with identities on watch lists such as criminal suspects, missing persons or people of interest.  Bridges had lost his original case at the High Court, but the Court of Appeal held that his right to privacy, under Article 8 of the European Convention on Human Rights, was violated as the police had been allowed too much discretion in applying the technology.  The Court also found that South Wales Police had failed to investigate racial and gender bias in their facial recognition algorithms.

Mr Bridges, who is a former Liberal Democrat councillor for Gabalfa in Cardiff, said that he did not set out to make a case on the issue, but after the protest at an arms fayre at Cardiff International Arena, where he felt the police were surveilling people to intimidate protestors, he decided to get in touch with Liberty.  The 37 year old, who used crowd-funding to pay for the legal costs, said “We have policing by consent in this country”.

Liberty lawyer Megan Goulding described the judgment as a “major victory in the fight against discriminatory and oppressive facial recognition” and civil rights campaign organisation, Big Brother Watch said it “should deter police from lawlessly rolling out other kinds of oppressive technologies”.     The Surveillance Camera Commissioner, an independent appointee of the Home Office, welcomed the judgement, saying the “use of this technology will not and should not get out of the gate if the police cannot demonstrate its use is fair and non-discriminatory.”

Meanwhile, South Wales Police, are playing the judgement down, reiterating their commitment to the “careful development and deployment” of the technology but  Daragh Murray,  Senior Lecturer here at the Essex Human Rights Centre, has said “It means that any use of facial recognition must be stopped until an appropriate legal basis is established.”

 

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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.

 

 

Mobile phone theft and EU eprivacy law: the CJEU clarifies police powers

By Lorna Woods

This post originally appeared on EU Law Analysis, and is reproduced here with permission.

Introduction

This week’s CJEU judgment in Case C-207/16 Ministerio Fiscal is part of the jurisprudence on the ePrivacy Directive, specifically Article 15 which broadly allows Member States to permit intrusions into the confidentiality of communications for certain specified reasons.  Article 15 is part of the legal framework for the mass retention of communications data from Digital Rights Ireland (Case C-293/12 and 594/12), EU:C:2014:238) (“DRI”) on and in which the Court has affirmed that retention schemes could be justified only in the case of “serious crime” (Tele2/Watson (Joined Cases C-203/15 and C-698/15), ECLI:EU:C:2016:970).  This left the question of what “serious crime” might be, and whether there would be EU law standards circumscribing the scope of this term. It is this question that the reference here seeks to address, though it should be noted that the facts in issue were very different from those in the earlier cases. Continue reading

Big Brother Watch and Others v. the United Kingdom – Some initial thoughts

By Daragh Murray & Vivian Ng

On Thursday, 13 September 2018, the European Court of Human Rights (ECtHR) handed down their decision in Big Brother Watch and Others v. the United Kingdom. This decision addressed the legality of the United Kingdom’s (UK) bulk interception programme, intelligence sharing, and the obtaining of communications data from communications service providers and was prompted by the 2013 Snowden revelations.

This is a complex decision which is likely to have significant ramifications for mass surveillance programmes. As such, it is too early to offer detailed analysis, and this post intends to highlight some of the interesting elements that we will be thinking over in the coming weeks and months. Our focus here is on the bulk interception programme.

For an excellent initial post on the implications for the UK’s Investigatory Power’s Act, please see ‘Big Brother Watch v UK – implications for the Investigatory Powers Act?’ at Cyberleagle. Continue reading

A Brief Review of the OHCHR Consultation on the Right to Privacy in the Digital Age

By Vivian Ng

The Office of the United Nations High Commissioner for Human Rights (OHCHR) conducted a consultation on the right to privacy in the digital age, convening an expert workshop in Geneva from 19-20 February 2018 and invited relevant stakeholders to submit contributions for a report on the right to privacy in the digital age. The Human Rights, Big Data and Technology Project participated in the expert workshop and submitted inputs to OHCHR. The report has now been published. This post will highlight the key elements of the expert workshop, outline HRBDT’s contributions, and summarise OHCHR’s outcome report.

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Quick Comment on UK Draft Data Retention and Acquisition Regulations 2018 and the definition of ‘serious crime’ for bulk surveillance powers

By Daragh Murray and Pete Fussey

The UK Government has published the Draft Data Retention and Acquisition Regulations 2018, which propose changes to the Investigatory Powers Act 2016 (IPA) and the Regulation of Investigatory Powers Act 2000 (RIPA). Both the IPA and RIPA provide a legal basis for Government surveillance, including bulk surveillance techniques.

The changes included in the draft were brought about, in large part, as a result of adverse findings by the Court of Justice of the European Union in the Watson case, which held that the EU Charter of Fundamental Rights:

…must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. (para 125)

Continue reading