A few years ago, facial recognition technology seemed foreign to the average citizen. Today, the ever-popular Apple iPhone uses facial recognition technology to unlock its newest models. With facial recognition right at our fingertips, where else should we expect to see it? Tamir Israel, a staff lawyer at CIPPIC (the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa), spoke more on this subject on Michael Geist’s recent LawBytes podcast episode. Their conversation touched on the pushes toward, pulls away from, and perils of using facial recognition technology at the national border.
The Push: It seems inevitable for facial recognition technologies to evolve for use beyond unlocking smartphones, and Tamir agrees with this hypothesis. He notes that the technology has improved substantially and will be able to provide a new level of efficiency at the border. For one, facial recognition has become cheaper overall, notably in relation to the cameras necessary. This renders these technologies affordable for large-scale security use at the border.
A basic example of current usage is an online passport application process adopted in the UK, through which a facial analytic process checks the quality of the images and rejects the ones that do not meet the requirements. Though this example a rudimentary, Tamir projects this to be the mere beginning of such technology use at airports. He specifically speaks to a pilot project that may result in facial recognition technology eliminating the need to check travellers’ passports. Instead, their face will function as their passport.
The Pull: Facial recognition technology must still overcome a demonstrable capacity for error before it can be widely adopted. Tamir acknowledges that the current technology has reached a general level of accuracy that renders it useful for the government to implement, but it is still not perfectly accurate. Alarmingly, even an error rate of 1% would result in thousands of errors per day when considering the mass flow of people in and out of an airport daily.
Of more concern here, however, is that these errors are not evenly distributed among the population. Tamir identifies two specific forms of errors: false positives (whereby someone is erroneously matched as an individual they are not, which is of primary concern if an innocent individual is falsely matched as a suspect/wanted criminal), and false negatives (whereby the technology cannot match an individual to a genuine photo of them). A particular challenge with regard to these errors is racial bias: facial recognition systems have a harder time matching people of darker skin tones. If airports implement facial recognition technologies, members of visible minorities would face an unfairly greater risk of a false negative.
The magnitude of such errors can be seen within the aforementioned UK passport application process, which failed to work with dark-skinned individuals. Though not mentioned on the podcast, examples of false negatives have also disproportionately impacted minority individuals. Tamir notes that such biases would severely affect immigration where an individual would lack the necessary means to dispute errors in the system. Conclusively, large-scale border use of facial recognition technology presents a genuine danger of inflicting more harm on some people than others.
The Peril: Zooming in more closely on Canadian law, Tamir notes that our current legal toolkit is inadequate. Canada does not have much regulation on facial recognition specifically. The central privacy protection we have is the Privacy Act, which was enacted in 1983 and has not been meaningfully updated to accommodate rapidly changing facial recognition technology. More specifically, we would require laws that prioritize transparency. The public should be able to access information about facial recognition technology and its error rates, or other possible downfalls. If we are to implement facial recognition technology at our borders, we need a legal framework that touches upon these issues.
The ongoing pandemic has halted many pilot projects surrounding facial recognition at airports. Considering these technologies are currently at somewhat of a standstill, now is a great time to engage in discourse regarding the future of facial recognition technology, which appears to be evolving faster than the law can keep up. In considering whether or not we are ready for widespread facial recognition use, Tamir’s insights help us understand how we can prepare to be ready before facial recognition lands at our airports, and this podcast is therefore a worthwhile listen.
Written by Saumia Ganeshamoorthy, a second-year JD candidate at Osgoode Hall Law School and a contributing IPilogue editor.
