Facial recognition technology row is Hamlet without the biometric prints

Last week was marked by a change of personnel within Government as Minister for Justice Helen McEntee returned to her department after the birth of her son. Her first comments to the media mirrored those of the outgoing statement of the Minister with responsibility for her portfolio, Simon Harris. She expressed frustration at continuing delays in introducing facial recognition technology (FRT) to Irish policing. “This is not for racial profiling. This is not about mass surveillance,” she said.

The narrative from both Ministers runs that the obstacle to An Garda Síochána being able to deploy FRT is an obstructive Green Party: if only their Coalition partner would accept a sensible compromise, Garda demands for new technology would be satisfied and the fight against crime would be accelerated.

But this is a political row without the policy. Hamlet without the biometric prints. One year ago, Garda Commissioner Drew Harris wrote to the Minister requesting access to FRT. She immediately announced that legislation would be forthcoming. But since then, there has been legislative and policy silence. There has been no proposal for the public, media, civil society, academics, or technical and legal experts to analyse. Neither has there been any legislation for the Oireachtas to consider.

One fact is agreed by all sides — any Garda use of facial recognition technology would be a significant shifting of the surveillance goalposts and would require legislation

Sweepingly broad uses of FRT have been mentioned on the airwaves, while the then-minister for foreign affairs Simon Coveney made the Government’s far-reaching intentions clear in a letter to UN special rapporteurs in October 2022, writing: “It is proposed to introduce both retrospective and live facial recognition facilities into An Garda Síochána.”

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One fact is agreed by all sides — any Garda use of facial recognition technology would be a significant shifting of the surveillance goalposts and would require legislation. This point was emphasised by the Data Protection Commission (DPC) in its submissions on the Garda Recording Devices Bill. The DPC emphatically stated that the law, as proposed in July 2021, could not support Garda use of FRT. The Oireachtas Justice Committee went further. In its report on the same Bill, it recommended against any future provision for FRT.

Why is this specific technology so controversial in every country it has been contemplated?

First, the technology is flawed. Everywhere it has been applied, there have been significant problems with false positives linked to the databases on which the technology is trained, leading to poor accuracy rates for women, people of colour and ethnic minorities.

But even as the technology becomes more sophisticated, the risks to rights only increase. That’s why the European Data Protection Board has compared the use of FRT to treating humans like human licence plates. It is unequivocally a technology with the potential to constitute mass surveillance which would impact on basic democratic freedoms. We need laws and policies to prevent this from becoming reality.

Abstract assurances that future amendments will not fall foul of European and Irish law are meaningless without detail and context. For example, while we await the DPC’s report into the Department of Social Protection’s use of FRT for the Public Services Card, there is the question of where the images and databases to support an FRT system would come from? The EU is about to ban the practice of scraping images from the internet.

Our Garda Commissioner and Department of Justice are determined to emulate our neighbours in the UK who have rolled out the most extensive police use of FRT anywhere outside of China

The red herring at the heart of this political story is that objections and legal concerns about FRT are holding up the introduction of body-worn cameras (BWCs). The Irish Council for Civil Liberties is on record as being sceptical about the benefits of BWCs, but we accept that there are good faith arguments that they might make policing more accountable. It is also clear that there is broad political backing for their introduction across all the main parties in the Oireachtas. If the Government had progressed this Bill in its original form, without including FRT, we would now be focusing on how to design a robust pilot trial of body-worn cameras.

Even if you are in favour of BWCs, providing for cameras to be integrated in a system of FRT is a significant overreach. The technology presents additional and more complex legal and human rights issues than arise from body-worn cameras on their own, as is demonstrated by the fact that Axon, the largest provider of BWCs in the US refuses to equip them with FRT on ethical grounds.

In opting for this combined model, it seems our Garda Commissioner and Department of Justice are determined to emulate our neighbours in the UK who have rolled out the most extensive police use of FRT anywhere outside of China. One crucial difference of course is that the British citizens are not protected by the safeguards of EU law.

Under the EU Law Enforcement Directive (and Ireland’s Data Protection Act) the Government is obliged to consult the Data Protection Commission to test its proposals. Similarly the EU’s forthcoming AI Act is not merely advisory; Ireland will be bound by this law which, in its current form, bans most police uses of facial recognition technology.

The widespread public concerns about facial recognition technology engage key human rights standards under Irish and European law. These cannot be wished away through negotiation between An Garda Síochána, the Department of Justice and Coalition partners. Neither is this a simple choice between law and order and civil liberties. Legislating on issues of technology and surveillance is never straightforward, and there may well be important distinctions to be made between different uses of this technology — but these must be analysed, tested and subject to the most careful democratic scrutiny.

Ms McEntee is correct to say that a year since this was first proposed is too long. We are all waiting to discuss and work through these issues, but the delay has been at the legislative start of the process rather than end. If the Minister is confident that her FRT proposals are practical, proportionate and within the law, then she should publish them and allow the Oireachtas — and the public who will be subject to this surveillance — see what she proposes to do.

• Liam Herrick is executive director, Irish Council for Civil Liberties