Written by Monisha.C.J, 5th year BBA,LL.B(hons) student, Dr.MGR educational and research institute, During the internship with Le Droit.
KEYWORDS:
Facial recognition technology (FRT), Privacy rights, Data protection, Biometric surveillance, Artificial Intelligence, Law enforcement and Digital regulation.
ABSTRACT:
The rapid integration of Facial recognition technology (FRT) into law enforcement, Public surveillance, and commercial systems raises urgent questions about privacy rights and digital regulation. As the biometric tool becomes central to governance and policing, the absence of robust legal safeguards could lead to unchecked surveillance and misuse.
This Article delves into the ethical and legal challenges posed by Facial recognition technology (FRT), with a focus on India’s underdeveloped regulatory landscape. It evaluates the global practices, Judicial trends, and legislative gaps to propose a balanced framework that considers both security imperatives and constitutional freedoms. By advocating for transparency, content-based data handling, and Algorithmic accountability, this article outlines a legal roadmap that reconciles innovation with individual rights in the digital era.
INTRODUCTION:
Facial recognition technology (FRT) is no longer a futuristic idea, as people incorporate such technology into their day-to-day lives, from unlocking their phones to tagging friends in social media posts. FRT is transforming the way both public and private entities interact with individuals. However, the rapid expansion of facial surveillance technology brings with it a difficult legal and ethical question: Are we trading our privacy in the name of protection?
Around the world, the provisions related to FRI are either underdeveloped or absent. As the digital era is in its booming stage with enormous technological advancements, it is crucial to examine whether FRT can strike a fair balance between ensuring public safety and upholding the fundamental right to privacy under Article 21 of our Indian Constitution.
Applications and Benefits of Facial Recognition:
Facial recognition technology (FRT) operates by identifying and verifying a person’s facial features using multiple sources such as Images, videos, or live feeds. The use of Facial recognition technology (FRT) has rapidly expanded over a variety of sectors as follows;
- Law Enforcement :
The police department of India and other countries across the world use Facial recognition technology (FRT) to identify suspects, track criminals, and solve cases faster. The National Crime Records Bureau(NCRB) in India has introduced a specialised system called the Automated Facial Recognition System (AFRS) for making the investigation in criminal proceedings easier and faster.
- Border Control and Airports:
Airports use Facial recognition technology (FRT) to expedite immigration checks and improve security. Systems like DigiYatra in India aim to ease passenger movement through biometric verification at airports.
- Consumer Technology:
Various smartphone companies, Banking apps, and E-commerce platforms use Facial ID systems for secure transactions and authentication.
- Retail and Marketing:
Some companies analyse customer expressions and demographics for personalised advertisements.
While these applications demonstrate the protective and efficient potential of Facial recognition technology (FRT), they also open the possibilities to serious legal and ethical risks.
Privacy Risks and Challenges:
The increased use of Facial recognition technology (FRT) raises significant concerns about surveillance, discrimination, and data protection. These include:
- Violation of Right to Privacy:
In India, the landmark Supreme Court case Justice K.S.Puttaawamy(Retd.) v. Union of India (2017) 10 SCC 1 declared the right to privacy as a Fundamental right under Article 21 of the Indian Constitution. The article’s definition includes that collecting Facial data without the person’s consent or knowledge directly infringes upon this right.
- Lack of Consent and Transparency:
Most of the citizens are not aware that their facial data is being collected in public spaces in numerous ways, such asCCTV with integrated Facial recognition technology (FRT) or private surveillance tools. The absence of consent mechanisms makes the process opaque and intrusive.
- Algorithmic Bias and Discrimination:
Studies from numerous institutions and organisations such as Massachusetts Institute of Technology (MIT) and American Civil Liberties Union (ACLU) have shown that Facial recognition technology (FRT) systems are prone to Racial and Gender bias, often misidentifying people of colour and women more than others. If used unchecked, these errors can lead to wrongful arrests and systematic discrimination.
- Intimidating Effect on Fundamental Freedoms:
The widespread surveillance can discourage individuals from participating in protests, political activities or religious events. This has an Intimidating effect on freedom of Speech and Expression, another right protected by the constitution in India.
LEGAL FRAMEWORK IN INDIA:
Despite the increased use of facial recognition tools, India lacks specific legislation that governs the use of Facial recognition technology (FRT). Some relevant frameworks include:
- Digital Personal Data Protection Act 2023:
Though a step forward, the act does not deal with the biometric surveillance in public spaces or law enforcement use in detail. It focuses primarily on data processing and consent in Digital platforms.
- Automated Facial Recognition System (AFRS):
The AFRS (Automated Facial Recognition System) was launched by the NCRB (National Crime Records Bureau); this system enables real-time facial identification but lacks parliamentary oversight or clear privacy safeguards.
- Absence of Regulatory Authority:
India does not have a dedicated data protection authority or a supervisory body to ensure accountability in Facial recognition technology (FRT) use.
GLOBAL LEGAL LANDSCAPE:
| SL.NO | COUNTRY | LEGAL LANDSCAPE |
| 1 | European Union (EU) | The General Data Protection Regulation (GDPR) treats facial data as “sensitive personal data”, subject to strict consent requirements. The proposed AI Act aims to ban Real-time facial recognition in public spaces unless its exceptional cases like terrorist attacks. |
| 2 | United States | Facial recognition technology (FRT) regulations vary by state and city. Cities like San Francisco and Boston have banned government use of Facial recognition technology (FRT). However, there is no federal law governing the technology. |
| 3 | United Kingdom | Facial recognition technology (FRT) is used by police and in some public areas under the Surveillance Camera Code of Practice (SCCP). However, its legality has been contested, including in the case of Bridges v. South Wales Police (2020)EWCA Civ 1058, where the court found a lack of sufficient safeguards. |
| 4 | China | Facial recognition technology (FRT) is widely used across the country for mass surveillance and social credit scoring. Privacy concerns are secondary to state control and public order. |
CASE STUDIES AND LITIGATION:
- The company scraped billions of photos from social media for use in FRT databases.
- It faced lawsuits for violating privacy and consent laws.
- Delhi Police FRT use:
- During the 2020 anti-CAA (Citizenship Amendment Act,2019), Delhi Police used the FRT to identify participants.
- This raised concerns over Profiling and unlawful surveillance.
BALANCING PRIVACY AND PROTECTION; THE WAY FORWARD:
Facial recognition technology (FRT) is undeniable in its use for precluding crime and perfecting digital access. But its use needs to be controlled, reasonable, and responsible. The conduct listed below is necessary to attain this equilibrium:
- Comprehensive Facial Recognition Technology (FRT) Regulation:
India should consider enacting laws which regulate the use of Facial recognition technology (FRT) in both Public and Private sectors. This law should define permissible use cases, promote transparency, and require judicial or independent oversight.
- Mandatory consent and Opt-out:
Individuals should be informed when their data is collected, and the platform should clearly inform users how their data is being used.
Also, if the individual is not comfortable after sharing their data, they should be given the option to opt out from providing the data.
- Public Oversight Bodies:
It is recommended to create independent authorities to monitor how and where Facial recognition technology (FRT) is used and to handle complaints and misuse of such technology.
- Time-Bound Data Storage:
Limit the duration for which biometric data is retained to prevent indefinite profiling.
- Digital Literacy and Awareness:
Citizens must be educated about their rights and the technology affecting their privacy.
CONCLUSION:
Facial recognition technology (FRT) can make life easier and help law enforcement track down criminals more efficiently, and is an effective way. But without proper rules, it also threatens our basic privacy rights and encourages unchecked biometric surveillance. The extended use of Facial recognition technology (FRT) in public spaces is often without our consent, which raises serious concerns about how personal data is being used and protected.
If India wants to move forward with this Facial recognition technology (FRT), it must also strengthen its legal safeguards.
Data protection, consent, transparency, and fairness shouldn’t be a second thought; they should be built into the system. A balance is needed where technology supports security without weakening democratic values. In the end, Facial recognition technology (FRT) should protect people, not control them. The longest ensures that innovation never comes at the cost of the freedom of an individual.
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