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High Court issues notice to Telangana government on demand to stop using facial recognition

A petition draws attention to facial recognition being carried out in Telangana devoid of legal backing and safeguards.

A social activist from Hyderabad has filed a petition against the widespread use of facial recognition technology (FRT) in Telangana. Based on the petition, the Telangana High Court issued a notice to the state government and the matter will be heard next on January 15.

SQ Masood, who had earlier sent a legal notice to the Hyderabad City Police Commissioner, drafted his recent petition with help from Internet Freedom Foundation (IFF) against the Telangana government alleging that —

  • Facial recognition technology restricts the Right to Privacy without complying with applicable law
  • There are lack of procedural safeguards
  • Its deployment was without ‘probable or reasonable cause’

He urged the High Court to declare the use of FRT by the government as unconstitutional and illegal, and to prohibit government usage by passing any writ of mandamus, writ, direction or order.

Of late, the Indian government and several state governments have been turning to facial recognition for policing, identity verification, and even distributing rations. The issue has been debated as privacy was declared a fundamental right in India, but the nation is yet to have a major data privacy law in place. The low accuracy rates of such technology, which may prove to be exclusionary, is a major point of concern.

Usage of FRT not in accordance with Puttaswamy judgement

The petition which was viewed by MediaNama, said that the usage of FRT in Telangana does not meet the four-fold requirements which were established in the KS Puttaswamy v Union of India and Ors (2017) judgement. The requirements are of —

  • Legality, which postulates the existence of law
  • Need, which is defined in terms of the aim of the State
  • Proportionality

Masood said in his petition that despite several attempts, the government has refused to disclose the legal basis.

Need for legislation: Masood said that to satisfy the ‘legality’ requirement of the Right to Privacy judgement, a legislation needs to be in place that can empower the executive to use FRT for law enforcement and surveillance purposes. Such a legislation should also provide clarity on the storage and usage of any personal data or sensitive personal data collected through facial recognition technology, the petition said.

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In the absence of a statutory regime underpinning the deployment of FRT, or any other kind of system premised on the collection and processing of sensitive personal information in the form of facial biometrics by the Respondents, use of FRT is fatal to its legality. This illegality cannot be cured or justified on the basis of its purported benefits in advancing law enforcement interests – under the guise of providing better policing, Respondents cannot transform society into a police state. In any event, it is pertinent to note that these purported benefits are yet to be proven and are primarily anecdotal — Petition

Usage is in contravention of Telangana Public Safety Act

The petition cited the Telangana Public Safety Measures (Enforcement) Act or the Telangana Public Safety Act which says that private persons can install cameras at the entry and exit points of establishments. “However, the Telangana Public Safety Act does not confer power upon Respondents Nos 1 and 2 to install FRT. Moreover, the Telangana Public Safety Act itself lacks a sufficient legal framework to secure personal data,” the petition read.

Other laws violated by the usage of FRT, according to the petition  —

  • Identification of Prisoners Act (1920): The petition defined the IPA Act as a central legislation which permits enforcement agencies to take measurements and photographs of persons who are either convicted of crimes or are arrested on suspicion of commission of certain kinds of crimes. However it is limited to certain limitations, and it also mandates deletion of data. “It is apparent that even the limited safeguards afforded by this statute are not present in how FRT is being used and implemented by respondents,” Masood said in the petition.
  • Anuradha Bhasin v Union of India: This judgement along with Puttaswamy II judgement defined proportionality. The petition said that proportionality requires that the government adopt the “least restrictive alternative” that can adequately serve the legitimate state purpose. It said that the deployment of FRT in Telangana does not meet the test of proportionality.
  • Right to Equality: Masood said that the use and implementation of FRT incorporates arbitrariness which is in violation of Article 14 of the Constitution.

Where are the procedural safeguards?

Telangana does not have any procedural safeguards to prevent disproportionate harm to ‘minorities and vulnerable persons, who are at a higher risk of being profiled’, the petition argued.

Currently Respondent No 2, has complete discretion in deciding who to stop and where to stop them to forcibly take their photograph for inclusion in potentially multiple police databases, besides covertly capturing photographs through CCTV cameras. The discretion is not curtailed through any publicly available guidelines. Further there is no remedy available to persons such as the petitioner to request access to data held about them, and to request its deletion… — Petition

It also said that the FRT in Telangana lacks transparency and accountability measures, through parliamentary and/or judicial oversight.

Legal notice also highlighted lawlessness of facial recognition in Hyderabad

In a legal notice served to Hyderabad City Police Commissioner Anjani Kumar, the Hyderabad Police was asked to stop using artificial intelligence-based tools especially facial recognition systems for enforcing lockdown.

Masood, who had served the notice had reiterated that usage of FRT was in violation of Identification of Prisoners Act 1920 and Right to Privacy, and also said that the demand to remove masks was against Right to Life. “Removing the masks for the photograph also increases the chances of Covid-19, and “is a shocking violation of every person’s right to life as it exposes them to this deadly airborne virus”, Masood said.

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Among other subjects, I cover the increasing usage of emerging technologies, especially for surveillance in India

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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