Facial Recognition: Why We Should Worry About the Use of Big Tech for Law Enforcement

The Future of Democracy in the Shadow of Big and Emerging Tech (CCG, NLU Delhi/FNF, 2021), available at https://ccgdelhi.s3.ap-south-1.amazonaws.com/uploads/the-future-of-democracy-in-the-shadow-of-big-and-emerging-tech-ccg-248.pdf

13 Pages Posted: 3 May 2021

Date Written: November 1, 2020

Abstract

The terrain of the privacy battle in India is changing. What was once a subject of cinematic fiction in Minority Report has now become reality, powered by improvements in computational power and artificial intelligence. Facial Recognition Technology (FRT) and Live Facial Recognition Technology have entered our lives, and are here to stay. This essay argues that rather than improving transparency or efficiency, FRTs end up threatening democracy. It sketches out the privacy and fundamental rights concerns, which arise due to the use of FRT, including free speech and free assembly concerns, and necessitate the application of the proportionality test. The essay adopts the four-pronged proportionality test to evaluate the constitutionality of the use of FRT. This involves a specific consideration of the legality, suitability, necessity, and procedural guarantees surrounding the deployment of FRT by law enforcement agencies. The essay concludes with certain recommendations on the way forward for the use of FRT in India.

Keywords: facial recogniton, India, privacy, AI, proportionality, Puttaswamy, law enforcement, surveillance, democracy

JEL Classification: K1, K10, K14, K41, K42, Z18

Suggested Citation

Bhandari, Vrinda, Facial Recognition: Why We Should Worry About the Use of Big Tech for Law Enforcement (November 1, 2020). The Future of Democracy in the Shadow of Big and Emerging Tech (CCG, NLU Delhi/FNF, 2021), available at https://ccgdelhi.s3.ap-south-1.amazonaws.com/uploads/the-future-of-democracy-in-the-shadow-of-big-and-emerging-tech-ccg-248.pdf, Available at SSRN: https://ssrn.com/abstract=3824118 or http://dx.doi.org/10.2139/ssrn.3824118

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