Telangana High Court issues notice in India’s first legal challenge to the deployment of Facial Recognition Technology

tl;dr

Mr. S.Q. Masood, a prominent social activist from Hyderabad has filed a petition challenging the deployment of Facial Recognition Technology in the State of Telangana. In the petition, he has argued that the deployment of the technology is not backed by law, unnecessary, disproportionate, and is being done without any safeguards in place to prevent misuse. The petition was listed for hearing before a bench led by the Chief Justice of the Telangana High Court. The bench has issued notice on the petition after hearing submissions from Mr. Manoj Reddy who represented Mr. Masood in court. The case will now be taken up after court vacations which end on 15th January, 2022. IFF provided legal support in the drafting of the petition.

Background

On 19th May 2021, Mr S.Q. Masood, a prominent social activist and a consultant at several NGOs, was stopped by 8-10 police officers in Hyderabad while he was returning home from work. They directed him to remove his mask even though the pandemic was ongoing, and Hyderabad was reporting a large number of cases. They did so because they wanted to take his photograph. Mr. Masood refused but they captured his picture anyway. Concerned with how his picture may be used, and to find out the legal basis of the actions of the police officers, Mr. Masood addressed a legal notice to the Police Commissioner of Hyderabad with legal support from IFF. He did not receive any answer, but he decided to investigate further as he was concerned that the picture was taken for facial recognition.

His concerns proved correct when his investigation revealed that Telangana was the most surveilled place in the world, and the State Government had been deploying Facial Recognition Technology (‘FRT’) without any legal basis for a range of purposes including but not limited to law enforcement, supplying essential services, and elections.

FRT refers to a technology that involves processing images of individual faces for verification or identification of individuals by extracting data points from a face to create a template and then comparing it with an existing database. Verification is done by matching the live photograph of a person to the pre-existing photograph that is on the authority’s database (1:1). Identification is done by matching the photograph of an individual with the pictures in the database of the authority to ascertain the identity of the individual (1:many). FRT systems generate a probability match score or a confidence score between the suspect who is to be identified and the database of identified criminals that the Police has access to already (for eg. the Crime and Criminal Tracking Network System). Multiple possible matches are generated and listed based on their likelihood to be the correct match with corresponding confidence scores. The final identification, however, is usually done by the human analyst who selects one match from the list of matches generated by the technology. This identification procedure is ripe for misidentification because while the software releases several possible matches, the analyst conducting the search makes the final identification. This also opens the door for the analyst’s own biases to creep into the final result wherein they may be prejudiced against a certain race, religion or community, based on which their decision making may be affected.

The use of FRT by law enforcement agencies in Telangana

According to news reports, the Telangana Police has been deploying FRT across the State of Telangana in the form of FRT enabled-CCTV Cameras which enable mass identification of individuals in real-time. To that end, the State of Telangana has installed 5,80,000 CCTV cameras in public spaces. Apart from FRT enabled-CCTV cameras, the State of Telangana has also provided tablets/mobile phones to police officers on the ground which have the ‘TSCOP’ application. The application allows these officers to take a photograph and seek a match with an existing database. The images captured either on CCTV or through the TSCOP application are compared with the Crime and Criminal Tracking Network System database maintained by the Ministry of Home Affairs as well as other databases maintained by the State of Telangana.

As of date, no information is available in the public domain regarding the accuracy levels of either the FRT enabled CCTV Cameras or the FRT deployed TSCOP application. Worryingly, there also isn’t a law that governs on whom the police may deploy FRT or where they may deploy FRT or for what purposes they may do so. There also isn’t a law that governs how the data obtained through FRT may be stored, retained and used. Even more worryingly, the State of Telangana has refused to reveal the legal basis of the deployment of FRT or their accuracy levels in response to a right to information application filed by IFF.

Mr. Masood approaches the Telangana High Court

Concerned with the widespread use of FRT by the State of Telangana, Mr. Masood with legal support from IFF, has filed a petition in the public interest on behalf of residents of Telangana who have unknowingly been subjected to FRT on a daily basis. In the petition, Mr. Masood has pointed out that the use of FRT in Telangana violates the fundamental rights guaranteed by the Constitution, and has sought a declaration that such use is unconstitutional. Amongst other things, Mr. Masood has argued that:

  1. Use of FRT restricts the right to privacy without complying with applicable law: The Supreme Court in K.S. Puttaswamy v. Union of India & Ors (2017) 10 SCC 1, held that the government cannot restrict the right to privacy unless such restriction is based on law, and it is necessary and proportionate. The use of FRT restricts privacy as by way of biometric data it is used to surveil the activities of individuals. However, in the State of Telangana, no law empowers the executive to use FRT. Moreover, it is unclear what is the objective of the deployment, and considering that most FRT technologies are inaccurate, such deployment is not suitable to achieve any objective.
  2. Lack of procedural safeguards: Assuming that the State of Telangana does have the power to deploy FRT, there must be procedural safeguards to ensure that the power is exercised in a fair, reasonable and just manner. Currently, the police in Telangana have complete discretion in who to deploy FRT on and where to deploy FRT, apart from covertly capturing photographs through CCTV cameras. In fact, the Court of Appeals of England in R v South Wales Police prohibited the deployment of FRT because it was left to the discretion of the police on who/where to deploy FRT (See from Paragraph 90).
  3. Deployment without ‘probable or reasonable cause’: The deployment of FRT in Telangana is not targeted or specific or narrow. It is used for mass surveillance and is violative of the fundamental rights of the residents of the State of Telangana. The State of Telangana must demonstrate that there is ‘probable or reasonable cause’ for deploying FRT which has the effect of mass surveillance.

Hearing on 03.01.2022

The PIL was listed for hearing as item number 4 before a bench led by the Hon’ble Chief Justice of the Telangana High Court. When the matter was called out for hearing, Mr. Manoj Reddy, appeared on behalf of Mr. Masood. He argued that the deployment of FRT was without statutory basis, violated the right to privacy and disregarded the decision in Puttaswamy. At this juncture, the bench issued notice on the petition which was accepted by the counsel for the State of Telangana. The case will now be heard after court vacations which end on 15th January, 2022.

We thank Mr. Masood for allowing us to lend our expertise in this important matter. We have been extensively working on Facial Recognition Technologies through the Project Panoptic, which has informed a lot of work that went into the petition. We are especially thankful to Mr Manoj Reddy for leading the arguments before court. The petition was drafted by a team led by  Ms.Vrinda Bhandari and Mr. Abhinav Sekhri, and it consisted of  Mr. Tanmay Singh, Mr. Krishnesh Bapat and Ms. Anandita Mishra.

Important Documents

  1. Petition in public interest by Mr. Masood against the illegal deployment of FRT in the State of Telangana. (link)
  2. Previous blog post titled ‘Hyderabad Police force people top remove their masks before photographing them. We sent a legal notice.’ (link)
  3. Legal notice dated May 31, 2021 to the Police Commissioner of Hyderabad issued on behalf of Masood (link)
  4. Project Panoptic documenting instances of projects employing facial recognition technology in India (link)
  5. Previous blog post on Project Panoptic regarding the illegal and unconstitutional use of facial recognition technology (link)