Put national moratorium on facial recognition for law enforcement, lawyer tells HoC committee

The Canadian government should place a national moratorium on the use of facial recognition technology by law enforcement “until and unless” it is shown to be reliable, necessary and proportionate to legitimate aims, one technology and human rights lawyer told parliamentarians. Cynthia Khoo, associate at the Center on Privacy and Technology at Georgetown Law, Washington, D.C., and research fellow at Citizen Lab, made the comments Monday at the House of Commons Ethics committee as it studies the impacts of facial recognition. The moratorium on facial recognition technology was one of four recommendations Khoo made to the committee after highlighting several potential flaws with implementing equipment. Khoo said researchers have found that the technology works 99 per cent of the time when identifying white men, however, it is up to 100 times more likely to misidentify Black and Asian individuals, and misidentifies more than one in three darker skinned women. “Racial discrimination against Black and Indigenous peoples imbues every stage of the Canadian criminal justice system from carding, arrests, and bail to pleas, sentencing and parole. Embedding facial recognition algorithms into this foundation of systemic bias may digitally alchemize past and justices into an even more and perhaps permanently inequitable future,” Khoo stated before the committee. A 2020 report from Statistics Canada found that in a ten-year span “Indigenous inmates in federal institutions rose from 20 percent of the total inmate population in 2008-2009 to 28 percent in 2017-2018, while representing only 4.1 percent of the overall Canadian population.” According to a 2022 report by Statistics Canada, the 2020 General Social Survey (GSS) on Social Identity found that 21 per cent of Black people and 22 per cent Indigenous people have “little or no confidence” in police compared to 11 per cent for non-visible minorities. It also found that 8 per cent of Black people reported “have encountered a serious problem or dispute related to discrimination” compared to two per cent reported by non-visible minorites. Khoo recommended that the government launch a judicial inquiry into law enforcement use of pre-existing mass police datasets, such as mugshots. “This is to assess the appropriateness of repurposing previously collected personal data for use with facial recognition and other algorithmic policing technologies,” she said. Even if all bias were removed from facial recognition, Khoo argued, facial recognition would still pose an “equal or even greater threat” to Canadians’ constitutional human rights and recommended imposing the moratorium on the technology's use until “it is shown to be sufficiently necessary, proportionate, or reliable to outweigh these far reaching repercussions.” Khoo argued the use of the technology to identify people in public violates people’s privacy and anonymity found in their daily lives “and relies on collecting particularly sensitive biometric data.” She argued this could pose a threat to freedom of expression when individuals attend protests regarding social injustices and it could exacerbate gender violence by facilitating stalking of women. Managing partner at INQ Law Carole Piovesan told the committee that facial recognition technology is projected to become a $12 billion (USD) industry by 2028, up from a global market size of $3.6 billion in 2020. She said that facial recognition technology will become increasingly used in various sectors which can prove beneficial for safe and secure payments or can help healthcare practitioners to monitor patients. Facial recognition technologies "need to be regulated with a scalpel, not an axe,” she argued. “The issue becomes: ‘is there appropriate disclosure and notice as to the collection of that data, how it's going to be used, and is there an appropriate retention period that is ultimately in the control of the individual?’” Piovesan said while there are some protections under Canada’s federal and provincial privacy laws regarding companies collecting data through consent, the legislation is “patchwork.” “The issue is that we don't we don't have comprehensive regulation or frankly a comprehensive approach when it comes to the use of facial recognition technology as a technology soup to nuts,” she said. Piovesan said Canada needs to develop legislation that encompasses the collection of data, the storage, the design of system and the use of the system with an understanding of the safeguards from beginning to end, such as disclosure requirements for both public and private organizations and business. Khoo also noted that the majority of the public only knows about facial recognition technology through documents leaked to the media or freedom of information requests. This is proof, she said, of a lack of transparency and accountability in the system. “Policies governing police use of facial recognition can be even more of a black box and the algorithms themselves are set to be. This gives rise to severe due process deficits in criminal cases,” she said. Khoo said the government must immediately engage in public consultations, algorithmic impact assessments, consultation with historically marginalized groups, and develop an independent oversight mechanism, such as judicial authorization, if it were to implement the technology. Finally, Khoo argued that strict legal safeguards are needed to ensure that police partnerships with private companies do not “create an end run” around Canadians’ constitutional freedoms and to protect individuals from “unreasonable” search and seizures. She said software from companies such as Clearview AI, Amazon Inc.’s Amazon Rekognition, and NEC Corporation, are proprietary and “concealed by trade secret laws and procured on the basis of behind the scenes lobbying.” “This results in secretive public private surveillance partnerships that strip criminal defendants of their due process rights and subject all of us to inscrutable layers of mass surveillance,” she said. In Feb. 2021, British Columbia’s Office of the Information and Privacy Commissioner – in conjunction with the federal Office of the Privacy Commissioner (OPC) – found that Clearview engaged in “illegal mass surveillance” when it scraped some three billion images of faces and corresponding biometric identifiers off of publicly accessible information on the internet such as social media. The province’s information and privacy commissioner, Michael McEvoy, said at a press conference at the time that Clearview AI’s “blatant disregard for Canadian privacy law” was indicative of the need for stronger privacy legislation. The OPC launched a pair of investigations into the technology and the RCMP a year previously, after media reports of the technology’s use by police departments. Artificial Intelligence governance expert Ana Brandusescu told the committee that a public procurement process needs to be developed because the lack of process “is how Clearview AI got away with what it did across multiple jurisdictions in Canada.” “There was never a contract or procurement process involved. To prevent this OPC should create a policy for the proactive disclosure of free software trials used by law enforcement and all of government as well as create a public registry for them. We need to glassbox the blackbox,” she argued, adding that companies linked to human rights abuses, such as Palantir Technologies, should be removed from Canada’s pre-qualified list. Khoo said commercial technology vendors should be contractually bound and held to public interest standards of privacy protection and disclosure if they are going to share data with law enforcement. “Otherwise, the law would be permitting police agencies to do indirectly what the Constitution bars them from doing directly,” she said. Piovesan said it is not too late to act to regulate facial recognition technologies even though companies like Clearview AI have already collected millions of images. She pointed to the Federal Trade Commission in the United States, which demanded companies disgorge the algorithms and delete the data. She also noted that the European Union’s General Data Protection Regulation is starting to impose “very significant fines” not activity in its jurisdiction but rather for the use of European data subjects (its residents and citizens) to combat issues of extra jurisdictional enforcement. – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

Put national moratorium on facial recognition for law enforcement, lawyer tells HoC committee

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Put national moratorium on facial recognition for law enforcement, lawyer tells HoC committee

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