Tl;dr
Mr. S.Q. Masood, a resident of Hyderabad, was stopped by police officers on 19th May, 2021 who took his photographs without his consent, and even ordered him to remove his mask. Soon thereafter, he wrote to the Police Commissioner of Hyderabad reporting this incident and sought to know whether these photographs are being fed into a database and whether any privacy protections are being put in place in respect of such photographs. When he received no response, he approached us to send a legal notice to the Police Commissioner of Hyderabad on his behalf. We did so on May 31, 2021, and urged the Police Commissioner to cease such photograph collection exercises in the garb of COVID lockdown enforcement, since they achieve no objective except infringing on the fundamental rights of citizens.
"Take off your mask"
When Mr. S. Q. Masood, a social activist and consultant at various NGOs, was returning home on 19th May, 2021, after visiting his local lawyers with his father-in-law, he was stopped by approximately 8-10 police officials. They asked him to remove his mask to enable them to take his photograph on a mobile phone. This was rather shocking considering there is a pandemic ongoing, and so Masood refused to remove his mask, in view of prevailing risks. He was photographed by the police officials anyway, even though he was in compliance with all applicable lockdown measures and laws.
He brought the incident to the Police Commissioner’s notice on 20th May, 2021, and raised the following queries:
- What is the procedure being followed by Hyderabad City Police in collection of photos from individuals?
- Under what law is the Hyderabad Police collecting photos from individuals in the street?
- Whether these photos are being used for facial recognition by Hyderabad police?
- How are these photographs stored and what is the option for people to check if they are in the database and request for deletion?
- Who has access to the photo database?
- What privacy protections are available to citizens?
- What accountability mechanisms are in place to file complaints against officials misusing this technology to target minorities?
When he received no response to this, he approached us to draft a legal notice as a follow-up to this letter. “The Hyderabad Police have been implementing various surveillance systems in the city without appropriate laws and rules,” he said, adding, “There is excessive use of technology in policing without safeguards for citizens and their rights. These systems can't be without oversight.”
Such action is illegal and unconstitutional
We drafted a legal notice to the Police Commissioner of Hyderabad on May 31, 2021 on behalf of Masood. We pointed out that as per existing law and the Constitution of India, the activities being conducted by the Hyderabad City Police are per se illegal and a clear violation of the fundamental right to privacy of persons for several reasons.
Taking photographs of persons by police for law enforcement purposes is governed by the Identification of Prisoners Act, 1920. It does not permit taking photographs of persons by police, except those who have been arrested or convicted of a crime, or sharing such photographs with any other law enforcement agency.
Asking persons to remove face-masks to enable this illegal taking of photographs, at a time when COVID-19 is rampant, is a shocking violation of every person’s right to life as it exposes them to this deadly airborne virus.
We are also concerned that such photograph collection exercises carry an intention to feed the photographs into a database along with the use of facial recognition technology (FRT), since FRT uses algorithms to extract data points from your face to create a digital signature of your face. This signature is then compared with an existing database to find possible matches. However, one of the many problems with FRT is that 100% accuracy in finding matches has not been achieved and thus this technology comes with the harms of misidentification (false positive) and failure to identify (false negative). In addition to inaccuracy, this technology also poses huge threats to the fundamental rights to privacy and freedom of speech and expression. Nevertheless, use of this technology has been increasing gradually as multiple government facial recognition projects are developed and deployed across the country.
Taking photographs of persons along with other data without any legal basis; without any measures in place for regulating their collection, storage, and use; and without any accountability mechanisms to prevent misuse, is an egregious violation of the right to privacy. The Supreme Court of India in K.S. Puttaswamy v Union of India, (2017) 10 SCC 1 has held that any incursion of privacy must satisfy the tests of legality, necessity and proportionality, which were not satisfied in the present instance.
We urged the Commissioner to cease use of FRT under the garb of COVID-19 measures
We pointed out that the activities being conducted by the Hyderabad City Police, ostensibly for purposes of enforcing lockdown related regulations, are unlawful and carry the risk of causing grave harms that are both intrinsic (through the violation of one’s privacy and the possible misuse or unauthorised sharing of such photographs) and instrumental (contracting COVID-19).
In light of the above concerns, we called upon the Police Commissioner of Hyderabad to immediately cease the use of any Artificial Intelligence based tools for enforcing the COVID-19 lockdown guidelines, especially facial recognition or face-matching technology. In its current form, the use of FRT is unconstitutional, devoid of any legal backing, and constitutes a disproportionate violation of privacy, and must be halted immediately. We also requested that the concerned police officials permanently delete Masood’s photographs illegally taken on May 19, 2021.
We will keep you updated on any developments.
Important Documents
- Legal notice dated May 31, 2021 to the Police Commissioner of Hyderabad issued on behalf of Masood (link)
- Project Panoptic documenting instances of projects employing facial recognition technology in India (link)
- Our previous blogposts regarding the illegal and unconstitutional use of facial recognition technology (link)