Outcry over mass facial surveillance — digital rights activists say it’s ‘completely illegal’ and ‘unconstitutional’

• Digital activists have issued a legal notice to the Delhi Police against the use of the Automated Facial Recognition Software (AFRS).
• They assert that such mass surveillance is 'completely illegal' and 'unconstitutional'.
• Even though AFRS is being used to monitor crowds in Delhi, its original intent was to help the police track down lost children.

The Delhi Police has come under the scanner for using camera drones to track demonstrators during protests against the Citizenship Amendment Act (CAA).

However, they've also been using facial surveillance to monitor crowds even when there are no signs of non-cooperation. A report by The Indian Express states that Delhi Police used the Automated Facial Recognition System (AFRS) to screen the crowd during Prime Minister Narendra Modi's Ramlila Maidan Rally on 22 December.

That kind of mass surveillance, according to digital rights activists at the Internet Freedom Foundation (IFF), is "completely illegal".

"From building an underlying database of people from public protests to running it on crowds of people attending rallies. This directly impairs the rights of ordinary Indians from assembly, speech and political participation," it said in an open letter to the Secretary of the Ministry of Home Affairs and Commissioner of Delhi Police.

It was supposed to find lost children
The original intent of AFRS, however, was to find lost children. But even then, the success rate fell far short of expectations. The High Court called out its inefficiency on at least three occasions.

"Since this High Court case contains no clear direction for the use of facial recognition software, even for instances of locating missing children a question arises - What is the legal authority under which this facial recognition system is being implemented," said the IFF.

The danger of mass facial surveillance
Sources told the Indian Express that the Delhi Police has over 1.5 lakh 'history-sheeters' in its photo dataset so far. It's already being used in day-to-day crime investigations.

When it comes to public events, a smaller, secondary dataset made up of 2,000 images of terror suspects is used. A third database of 'rabble-rousers and miscreants' has only recently been added to their arsenal.

"We submit that the use of the AFRS for profiling and surveillance at public congregations is illegal and unconstitutional," said IFF's legal notice to the Delhi Police.

Since there are no guidelines for the use of AFRS, there are no guidelines for the formulation of the databases. Thus, there is no checklist for the list of people including or excluded from the databases.

AFRS — a system without a purpose

Even if AFRS is to be used, it needs to have a legitimate aim and purpose. Its application should not be random and as per arbitrary rules.

"The use of AFRS for surveillance must clearly define the legitimate aim and purpose of such use, even if legality is presumed," said the IFF.

This is extremely important because while the authorities may see the AFRS as a way to make their jobs easier, the system needs to be balanced against fundamental civil rights — like the right to privacy and freedom of speech.

"There is no material/references available that state what legitimate aim would be achieved by the use of AFRS in political rally or protest given even at such spaces voicing dissent or assembly is an exercise of the fundamental right of a person," the IFF points out.

As for the 'trinity of databases', the collection of data can't be a blanket exercise. It needs to be specific and targeted while also preventing bias.

"If the goal is to identify a specific instance of wrong-doing or prevent crime (in policing), the State cannot achieve that by blanket and indiscriminate data collection, that fails to distinguish between those against whom there is probable cause of suspicion, and against whom there is not," said the IFF.

If checks and balances aren't put in place, it will be easy for misuse to seep through the cracks and take advantage of the lack of oversight and accountability.

See also:
Police using drones to identify key protestors⁠— and it may lead to harassment in the future

India's new data protection law is in the works and companies will only have to pay $2 million for violations

India is all set to deploy facial recognition but there is no law in place to keep a check