Privacy Protective Roadblocks and Speedbumps Restraining Law Enforcement Use of Facial Recognition Software in Canada

(2021) 69 Criminal Law Quarterly 216-236

21 Pages Posted: 8 Dec 2022

Date Written: May 31, 2021

Abstract

This paper argues that Canadian s.8 jurisprudence strongly suggests that police will need a warrant or production order to use any software that matches an unidentified suspect’s image with images that are identified, whether in a private or public sector database or via online sources. But the warrant system is not fully equipped to deal with the full span of protections that we need, given that oversight of police use of facial recognition tools should include further scrutiny of a given tool’s accuracy and any bias associated with it, the capacity to audit uses of these tools that did not result in charges open to Charter challenge, as well as means to govern what happens to the biometric data that it generates, among other things. These are aspects that the data protection regime is better able to address. What we need then is a meaningful dialogue between the warrant system and public sector data protection regimes. Working out how they work together would allow for justified uses of facial recognition tools via well-crafted judicial authorizations as paired with data protection oversight mechanisms that aim to respect the privacy rights of us all.

Keywords: privacy, search, data protection

Suggested Citation

Slane, Andrea, Privacy Protective Roadblocks and Speedbumps Restraining Law Enforcement Use of Facial Recognition Software in Canada (May 31, 2021). (2021) 69 Criminal Law Quarterly 216-236, Available at SSRN: https://ssrn.com/abstract=4275241

Andrea Slane (Contact Author)

Ontario Tech University ( email )

2000 Simcoe St. N.
Oshawa, Ontario L1G 0C5
Canada

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
84
Abstract Views
252
Rank
540,282
PlumX Metrics