Privacy Commissioner Concerned by the use of Facial Recognition Software by Police

Written on Behalf of Affleck & Barrison LLP

Facial recognition technology is becoming increasingly popular and being used throughout airports, shopping centres and even by law enforcement.  However, many are concerned about issues of privacy, safety and legislation regarding the use of this type of technology.

In a recent announcement, privacy commissioner Daniel Therrien, along with ombudsmen from British Columbia, Alberta and Quebec, will jointly investigate the use of facial recognition technology supplied by the U.S. firm Clearview AI in Canada.  The investigation will examine whether the firm’s practices comply with Canadian privacy laws.

Police services in Durham, Toronto, Peel and Halton have all confirmed that they have stopped using the controversial Clearview AI facial recognition technology as they await further direction from the government. 

WHAT IS FACIAL RECOGNITION?

A facial recognition system is technology that maps an individual’s facial features mathematically and stores the data as a faceprint.  The technology measures variables of a person’s face including, the length or width of the nose, the depth of the eye sockets and shape of the cheekbones.  The software uses algorithms to compare a digital image to the stored faceprint in order to identify an individual’s identity. 

Facial recognition can be used in a variety of ways, including:

  • For consumer security by mobile phone manufacturers, such as Apple;
  • For law enforcement through the collection of mugshots to be compared against databases from local, provincial and federal resources;
  • Through social media, such as Facebook, to tag individual in photographs;
  • For security purposes to recognize those that are granted entry into buildings; and
  • For marketing to determine age, gender and ethnicity to target specific audiences.

WHAT IS CLEARVIEW AI TECHNOLOGY?

Clearview AI provides law enforcement with technology to access images from social media and other websites to cross-reference uploaded images of individuals to assist with an investigation.  It is reported that there are three billion photos on the database. 

Facial recognition databases can be used by police to help identify possible criminal suspects.  The technology searches through images, such as mug shots, and algorithmically compares them with other images, such as images captured from a store’s surveillance camera, to identify an individual believed to have committed a crime.

Cleaview AI’s technology allows for the collection of a vast number of images from numerous sources that can assist police and financial institutions to identify people.  The technology requires nothing more than a photograph to provide an individual’s name, phone number, address or occupation.  This program is not available for public use.

THE TROUBLE WITH FACIAL RECOGNITION TOOLS

One of the problems of using facial recognition tools is the low accuracy.  The program may wrongly identify an innocent individual as a suspect or a person of interest. 

According to a U.S. government study released late last year, facial recognition systems misidentify people of colour more often than white people. 

The study completed by the National Institute of Standards and Technology found that many facial recognition algorithms were up to 100 times more likely to misidentify Asian and African American people than Caucasians.   Native Americans had the highest false-positive rate of all ethnicities.  They also found that there were higher rates of false positive results for African American females in the situation where searches are used to compare an image to others.

The report, Face Recognition Vendor Test (FRVT) Part 3:  Demographic Effects, reviewed 189 software algorithms from 99 developers.  The study used 18.27 million images of 8.49 million people from State Department, the Department of Homeland Security and the FBI databases.  The study focused on how well an individual algorithm performed one-to-one matching (confirming whether a photo matches a different photo of the same person in a database) and one-to-many matching (determining whether the individual in the photo has any match in a database). 

Ontario’s privacy commissioner, Brian Beamish, admitted that he was unaware that the police were using Clearview AI’s products until February 5, 2020 and has been advised that it has been stopped.  In his statement, Beamish expressed the potential dangers and privacy concerns over the use of facial recognition technology:

The indiscriminate scraping of the internet to collect images of people’s faces for law enforcement purposes has significant privacy implications for all Ontarians.  We have made it clear in the past that my office should be consulted before this type of technology is used.

We will continue to follow the investigation into the use of facial recognition technology by police in Canada and will report any updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.