Regulating the Use of Live Facial Recognition Technology by Law Enforcement Authorities: An Incremental Approach
Cambridge Law Journal, Volume 82 , Issue 3 , November 2023 , pp. 414 - 449
36 Pages Posted: 28 Aug 2023 Last revised: 13 Jan 2024
Date Written: August 16, 2023
Amid the growing calls for the complete prohibition of the use by law enforcement authorities of live facial recognition (LFR) technology in public spaces, this article advocates for an incremental approach to regulating the use of the technology. By analysing legislative instruments, judicial decisions, deployment practices of UK law enforcement authorities, various procedural and policy documents, as well as available safeguards, the article suggests incremental adjustments to the existing legal framework instead of sweeping regulatory change. The proposed approach calls for adopting national legal rules governing watchlists and introducing spatial, temporal, and contextual limitations on the deployment of technology based on the assessment of proportionality and necessity. To enhance the effectiveness of overt surveillance using LFR, the article recommends adopting a transparency procedure that promotes accountability without undermining the objectives of law enforcement. Alternatively, the overt use of the technology should be limited to deterring the commission of crimes and safeguarding public safety, where transparency does not undermine its effectiveness. Limiting the scope of overt use of LFR technology entails that law enforcement agencies primarily utilise covert surveillance, with prior judicial approval, except in urgent cases, as this would improve effective criminal investigation and public safety. The legal adjustments proposed in this article can be implemented through flexible secondary legislation or local policies, rather than rigid statutory rules.
Keywords: live facial recognition, artificial intelligence, law enforcement, sensitive processing, privacy, overt surveillance, covert surveillance
Suggested Citation: Suggested Citation