The Scottish Biometrics Commissioner has signalled his support for primary legislation governing the use of live facial recognition (LFR) technology in Scotland.
Dr Brian Plastow has said an act of parliament regulating the use of the AI-powered technology would be the ‘best safeguard’ – after a recent motion passed at the SNP annual party conference.
Dr Plastow, a former senior police officer, says: “I do agree that primary legislation would allow this topic to be properly debated in Parliament as otherwise the police must rely on a patchwork of other laws.
“Primary legislation would also be helpful to the police as it could set clear boundaries around things like the ‘strictly necessary’ test, to then guide policy on the authorising environment including on proportionality and collateral intrusion.”
Dr Plastow also stressed that the Scottish Biometrics Commissioner’s Code of Practice has ‘several safeguards that would place stricter controls on the future use of such technology than exists in England and Wales’. In principle, however, as he outlined in a recent blog post, he would ‘support the future use of live facial recognition in Scotland by Police Scotland as an effective means to protect women, girls, and children from male violence and additionally for other proportionate law enforcement purposes’.
He said: “Any future decision by Police Scotland to adopt LFR would necessitate a significant programme of work including to address issues of custody image quality and to develop policy, processes, and governance arrangements and to procure an ICT solution with transparent algorithms addressing accuracy rates and bias. Any future deployment would of course also have to be proportionate and lawful and adhere to UK data protection law and in Scotland with the Code of Practice approved by the Scottish Parliament.”
Police Scotland signalled its intention to use LFR systems at a Scottish Police Authority meeting last month, despite concerns over potential human rights and privacy concerns.
The force also engaged in a ‘national conversation’ on the technology in May this year – involving various stakeholder groups and the public – and committed to pressing ahead with adoption of the technology, albeit with assurances in place.
The force tested out three different scenarios for that purpose: the first was in the ‘nighttime economy’, where the risk of sexual offending or violence was deemed to be high; the second was for vulnerable or missing people, where the technology could be deployed in busy places like transport hubs, and the third was for indoor events, which could be potential targets for terrorism or where those subject to restrictions, such as registered sex offenders, may be prevented from attending.
However, SNP party members passed a motion at their annual conference last week requesting ministers delay the use of the controversial technology – and made a plea for primary legislation governing its use in Scotland.
In an unopposed motion, they also called for the legislation to be compatible with the Human Rights Act and the European Convention on Human Rights, as well as the European Union Artificial Intelligence Act’s restrictions on use of Live Facial Recognition technology.
Such restrictions curtail the use of technologies which pose an ‘unacceptable’ or ‘high’ risk to fundamental rights, but it does allow for the use of LFR in certain limited conditions, such as targeted searches for a known victim, such as a missing person or someone exploited through human trafficking. It also allows for the prevention of serious threats such as terror attacks, or imminent threat to life or physical safety under domestic legislation, or the identification or localisation of suspects or perpetrators of major crimes.
Erin Lux, who proposed the motion, said: “We only have to look south of the border to see what happens when these technologies are introduced by the back door without regulation, as they have been in England and Wales since 2016. Cases of misidentification, such as the one that led to anti-knife crime campaigner Shaun Thompson being accused of being a wanted man after being flagged by a system that he calls “stop and search on steroids”.
“Cases of police services being taken to court, with judges finding that this technology is being operated with “no clear legal basis”. And now, in a clear case of escalation, the Metropolitan Police looking to move beyond the facial recognition vans and operate permanently mounted facial recognition cameras in Croydon.”
The motion was ‘passed by acclaim’ at the conference in Aberdeen by the SNP’s Glasgow Southside Central Branch, the Equalities Convenor, the LGBTQ+ wing of the SNP – Out for Independence, the Disabled Members Group and the BAME Network. However, the motion is not legally binding on Scottish Government policy, even though the SNP is the ruling party, and it is understood that ministers would have to commit to adopting the measures advanced at conference as formal policy.
Police Scotland, meanwhile, has suggested that its approach takes into account legal, ethical and human rights.
Deputy Chief Constable Jane Connors, of Police Scotland, said in August: “I was also clear that our approach, supported by the Authority, the Biometrics Commissioner, and others is legal, ethical and underpinned by our values and human rights. That’s why we’ve worked with the Authority to develop and use a rights-based pathway and an approach to data ethics that can give confidence and necessary scrutiny to new technology being used by policing.”
