Clearer rules needed for facial recognition technology

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In a previous column, I wrote about the dangers that some police technology poses for civil liberties. In that column, I addressed technology that police used to identify certain geographic areas as being more prone to crime in order to direct their forces to those areas (or perhaps to "target" those areas under the guise of a computer program "identifying" them). Now, with Toronto police Chief Mark Saunders' recent admission that some officers in the Toronto Police Service have been using a piece of facial recognition technology called Clearview AI software (named for the company that developed the software) since at least October 2019, we have another example of how law enforcement can use technology in a way that seriously threatens our civil liberties.  

Clearview AI has apparently mined the internet for billions of photos of people, largely from social media sites and the open web (whereas other facial recognition technology providers relied upon government sources such as mugshots and driver's licence photos).

Our privacy legislation

In theory, you should not have to worry about your social media posts being used in such a fashion. After all, the federal government as well as all of Canada's provinces and territories have some sort of privacy legislation and bureaucracy for enforcing those laws. However, those laws may not be well suited to protect you from companies using your social media posts in this manner.

If we take, for example, the Personal Information Protection and Electronic Documents Act (PIPEDA), which is the federal law regarding how businesses have to protect personal information they collect, there are a number of problems that weaken the protections that the law should provide for your personal information.

In general, PIPEDA provides that businesses in Canada cannot collect, use or disclose any personal information about you without your consent (subject to certain exceptions). Personal information is defined as "information about an identifiable individual," so that photos of you should be protected from unwanted use or distribution, especially since the whole point of photos used in facial recognition software is to identify the individual. So why wouldn't PIPEDA prohibit a company like Clearview AI from taking your photos off of the internet and using them in its program?

First, PIPEDA may not even apply to Clearview AI, for the simple fact that it is not a Canadian company. Even when it provides services to Canadian police organizations, if it is doing so via the internet, it may be difficult to pinpoint a physical location where the services are supplied. Further, PIPEDA also may not apply to whatever social media platform the photos were posted to in the first place.    

Second, when you join a social media site, you need to sign on to its privacy policy. Depending on what the privacy policy says, you may be providing your consent to the use and distribution of any photos you post simply by creating an account. But even if the social media site in question has a privacy policy that permits you to restrict the use and distribution of your posted content, it may not be enough to protect the personal information contained in the photos that are posted, simply because one of the main points of posting to a social media account is to share one's messages and images over the internet. By doing so, you are arguably providing your implied consent to the sharing of your images.  

Sharing posts and the resulting loss of control over their use

On top of that, your posts may be liked, shared, reposted or forwarded in a manner you may not have intended. However, by posting them in the first place, you are arguably consenting to your posts being shared in that way. Further, each time a post is redistributed in such a way, you lose some degree of control over how the information in the post is used or who sees it. This may undercut an argument that you had consented to the use of personal information contained in photos that you post online only for certain limited purposes, because by willingly posting your photos in a media in which you know that third parties can access and redistribute them in ways that you cannot control, you have arguably consented implicitly to your photos being used in ways that you cannot control and did not intend.  

Not everyone shares this view. Former Ontario privacy commissioner Ann Cavoukian has rejected the idea that by posting images online, people implicitly consent to the use of those images for purposes other than what they specifically intended.  

Whether or not posting an image online means you have implicitly consented to the world seeing and sharing it, often in a manner that you cannot control, the reality is companies such as Clearview AI do use it for purposes you probably did not intend, and some police are willing to take advantage of those companies' services. 

As recently as January, the Toronto Police Service denied using Clearview AI. However, Saunders has since admitted that some officers had been using Clearview AI since last October without his knowledge, and that he ordered them to stop. But how can we know for sure if the techonology is still being used or not?  

This is an area where it is not enough that current legislation "might" prohibit police from using services like Clearview AI. Clear rules need to be set for the police to follow and a workable method of enforcing those rules needs to be put in place.

Michael Hackl is a lawyer with Iler Campbell LLP where he practices civil litigation, providing advice and representation to charities, non-profit organizations and co-operatives on various matters including employment matters, contract disputes and human rights issues.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario. Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice. Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Image: teguhjatipras/Pixabay

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