Saving faces: On protests, biometric surveillance

India appears to be normalising the technical ability to subject political gatherings to searchable biometric surveillance without first having settled, through legislation and judicial oversight, the circumstances in which the state may lawfully do so. While the Delhi Police have continued to deny the use of excessive force and manhandling people involved in the Cockroach Janta Party protests, contrary to protestors’ testimonies, facial recognition equipment was present at the protest site while the demonstrations were on. According to its affidavit to the Supreme Court of India, the police deployed a facial recognition system (including Artificial Intelligence-enabled cameras to scan faces in real-time against a database), a mobile surveillance van and a command and control vehicle, smart spectacles for identifying individuals on the move, and drones and videographers; the van and the spectacles have been tied to private contractors. The police have also not addressed whether actual biometric processing occurred with every individual within the range of cameras. Even if the police discarded the images associated with infructuous checks, that the data may have been accessible to private contractors, whose terms of engagement are unclear, is worrisome. However, no statute governs the use of facial recognition systems; the Digital Personal Data Protection Act, whose data-processing obligations are not yet in force, still makes broad exemptions for state agencies. The Automated Facial Recognition System of the National Crime Records Bureau can be used to identify criminals, unidentified bodies, and so on, and the Criminal Procedure (Identification) Act 2022 expanded the set of records that the police may collect from specified persons. However, these actions are still only allowed vis-à-vis specific groups of people.

Irrespective of the constitutional validity of the police’s actions, the chilling effect on potential participants may also curtail the right to protest. The state has to pass a well-established proportionality test when interfering with the right to privacy. While the first question — the existence of a legitimate objective — already poses important challenges to facial recognition en masse, the technology is indiscriminate at the point of capture. After all, there is a less restrictive but equally effective alternative (e.g., conventional policing). At this time, far too many questions are unanswered — including over the data-processing agreements, access, legal provisions that authorised major decisions, and the expected rate of false positives — for the use of facial recognition with all protesters to be justified.