Facial recognition technology and fundamental rights: setting the scene

• Author: European Union Agency for Fundamental Rights (EU body or agency)
• Pages: 2-4

Facial recognition technology: fundamental rights considerations in the context of law enforcement

2

1. Facial recognition technology and

fundamental rights: setting the scene

This focus paper explores fundamental rights impli-

cations that should be taken into account when

developing, deploying, using and regulating facial

recognition technologies. It draws on recent analy-

ses and data (Section 3 and Section 4) and evidence

from interviews conducted with experts and rep-

resentatives of national authorities who are test-

ing facial recognition technologies (Section 5).

1

The

last sections (Section 6 and Section 7) provide a

brief legal analysis summarising applicable Euro-

pean Union (EU) and Council of Europe law.

The paper forms part of FRA’s larger research pro-

ject on artif‌icial intelligence, big data and fundamen-

tal rights.2 It is the f‌irst paper to focus on the uses

of facial recognition technology, and builds on the

agency’s extensive past work on the fundamental

rights implications of the use of biometric data in

large-scale EU information systems in the f‌ield of

migration, asylum and borders.3

Facial recognition technology (FRT) allows the auto-

matic identif‌ication of an individual by matching

two or more faces from digital images. It does this

by detecting and measuring various facial features,

extracting these from the image and, in a second

step, comparing them with features taken from

other faces.4

In the private sector, facial recognition technology

is widely used for advertisement, marketing and

other purposes, with individual customers prof‌iled

and identif‌ied to predict their preferences towards

1 FRA carried out eleven interviews between March and May

2019, in EU Member States such as Germany, France and the

United Kingdom, to gain better insight into current testing,

and the potential use, of facial recognition technology.

2 The following have been published so far as part of the

research project: FRA (2018), #BigData: Discrimination in data-

supported decision making, Luxembourg, Publications Oce,

May 2018; FRA (2019), Data quality and articial intelligence

– mitigating bias and error to protect fundamental rights,

Luxembourg, Publications Oce, June 2019. For more on the

project, consult FRA’s webpage on the project.

3 See, for example, FRA (2018), Under watchful eyes: biometrics,

EU IT systems and fundamental rights, Luxembourg, Publications

Oce, March 2018; FRA (2018), Interoperability and fundamental

rights implications – Opinion of the European Union Agency for

Fundamental Rights, FRA Opinion – 1/2018 [Interoperability],

Vienna, 11 April 2018.

4 For more detail on how facial recognition technology

works, see e.g. Introna, L. and Nissenbaum, H. (2010), Facial

Recognition Technology: A Survey of Policy and Implementation

Issues, Lancaster University Management School Working

Paper 2010/030.

products based on their facial expressions.5 Other

examples from the private sector include a foot-

ball club using it in their stadium to identify peo-

ple who have been banned from attending the

club’s matches;6 using facial recognition technol-

ogy to analyse facial expressions of job candidates

in interviews;7 and major internet and social media

companies, such as Facebook, deploying facial rec-

ognition technologies to improve their systems, by

tagging faces.8

The recent evolution of artif‌icial intelligence (AI)

powered facial recognition technology is not attrac-

tive only to the private sector. It also opens new

possibilities for public administration, including law

enforcement and border management. A consid-

erable increase in accuracy achieved in the past

few years has prompted many public authorities

and private businesses to start using, testing or

planning the use of facial recognition technologies

across the world.

This, in turn, has sparked an intense debate on its

potential impact on fundamental rights. For exam-

ple, the large-scale use of facial recognition tech-

nology in combination with surveillance cameras

in the People’s Republic of China has led to many

discussions and concerns about potential human

rights violations, particularly with respect to detect-

ing members of certain ethnic minorities.9 Follow-

ing an increased use of facial recognition in the US,

a national survey published in September 2019 by

the Pew Research Centre f‌inds that, while slightly

more than every second American (56 %) trusts

law enforcement agencies to use these technologies

responsibly, smaller shares of the public say they

5 See for example: Italy, Garante per la protezione dei dati

personali, Installazione di apparati promozionali del tipo “digital

signage” (deniti anche Totem) presso una stazione ferroviaria,

21 December 2017.

6 See EDRi, “Danish DPA approves Automated Facial

Recognition”, 19 June 2019.

7 See The Telegraph, “AI used for rst time in job interviews in

UK to nd best applicants”, 27 September 2019.

8 See Wired, “Facebook can now nd your face, even when it’s

not tagged”, 19 December 2017.

9 Human Rights Council (2019), Surveillance and human

rights. Report of the Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression,

David Kaye, A/HRC/41/35; New York Times, “One Month,

500,000 Face Scans: How China Is Using A.I. to Prole a

Minority”, 14 April 2019.