The Future Lawyer Weekly Briefing-w/c 11th October

A Very Brief Overview Of The Global Regulatory Fight Against The Use Of FRT

Briefing by Idil Delmas

An overview

“But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.” Such were the last words written by Orwell in his novel 1984. Have we, too, come to love Big Brother, or more befittingly, Big Data?

Facial recognition technology (FRT), which consists of measuring out a face template using ‘depth maps’, has been appearing everywhere. The technology, already integrated into iPhones, is in high consumer demand and could be a game-changer for border control systems and law enforcement.

The impact of FRT

Many are recognizing, however, that the absence of regulation could result in the technology causing more harm than good. The EU has already suggested a moratorium on using FRT in public spaces until legislation is passed. It is already working on the ‘EU AI Act’ proposal, which separates technology uses into ‘unacceptable risk’, ‘high risk’ categories and so on.

This level of categorization will undoubtedly increase compliance costs and risks for Big Tech giants, which are already developing their own AI tools. Facebook, Google, and Amazon have each birthed Deepface, FaceNet and Rekognition, respectively, although they all promised to respect the temporary ban.

Other companies are not as compromising. Clearview AI is a new company that has amassed over 20 billion photos of people taken from the internet. Those captured in the snapshots can be identified through the collection of metadata and URLs attached to the image.

Clearview AI claimed its activities are legal since the pictures are publicly available online, usually posted by the individuals themselves on their social media accounts. This process, called ‘screen-scraping’, is nonetheless considered illegal under article 5(1)(a) of the GDPR, which states that personal data should be processed lawfully and fairly.

For this violation, amongst others of the GDPR, the company was slapped with a £7.5 million fine by the UK Information Commissioner, which in practice thwarts the company from being used in the United Kingdom. The measure is not an isolated one: Clearview AI has been fined by national data protection authorities across Europe, with the Italian authorities fining it €20 million earlier this year.

Although Clearview AI initially promised it would only sell access to the database to law enforcement agencies, data breaches have revealed that access was also sold to several private companies. In response, the American Civil Liberties Union won a settlement that effectively bans the company from selling access to the database to most businesses in the United States.

Global responses to FRT & social justice issues

The Big Brother Watch has been campaigning for an outright ban on Live Facial Recognition Technology, which is the ability of certain cameras to compare a face detected in real time to a specific database, stating on their website that faceprints constitute “biometric data as sensitive as a fingerprint”.

It is indeed striking that most countries have strict criminal procedure rules on the collection of fingerprints, yet the digital faceprints of millions of individuals have already been inconspicuously collected. The non-profit is right to be worried about London in particular, as it is the third most surveilled city in the world, with one camera for every 11-14 people, according to the British Security Industry Authority.

The Metropolitan Police Service has been busy equipping some of these with FRT for “testing” purposes and has already been proceeding to arrests based on the facial matches.

Certain cities, such as San Francisco, have outright banned the use of FRT. The argument is that the technology is not only pervasive and intrusive but is also prone to misidentification as it is trained on images of white men. According to the National Institute of Standards and Technology, FRT has a higher rate of false positives for people of colour, with black women being the most likely to be incorrectly matched.

These false positives present a serious risk regarding miscarriages of justice, an issue that already disproportionately affects people of colour. These mistakes are too grave to only have ex-post legislation on the matter, which explains the worldwide calls for bans.

Perhaps China’s use of technology to oppress Uighur Muslims in incarceration camps and to surveil its population has given the world an insight into the kind of dystopia FRT can feed into. Incidentally, two Chinese equipment suppliers to Xinjiang, where Uighur Muslims are being imprisoned, have been found to be using Microsoft’s FRT database, elegantly dubbed ‘Microsoft Azure’. Three years ago, Microsoft disagreed with the EU’s temporary ban on FRT because it was not “proportionate”.

Although governments, data protection authorities, and NGOs are cracking down on the unregulated use of FRT, law enforcement agencies and private companies continue to use the technology in ways that defy guidelines and general morality. It is paramount to hold these entities responsible and to watch closely what THEY are doing with the technology in the wait for strong and enforced regulation.

Impact on law firms

Individuals will bring more claims for privacy rights violations. In the first case of its kind, a man in 2020 was successful in his judicial review claim against the South Wales police for their unlawful use of FRT, which was found to violate the ECHR.

Claims will likely be brought under the Charter or the Law Enforcement Directive, the details of which are explained in the Guidelines 05/2022, as published by the European Data Protection Board.

Sources

‘The walls are closing in on Clearview AI’, Melissa Heikkilä, MIT Technology Review, 24 May 2022, <https://www.technologyreview.com/2022/05/24/1052653/clearview-ai-data-privacy-uk/>

‘Alphabet backs temporary ban on facial recognition, Microsoft disagrees’, Foo  Yun Chee and John Chalmers, Reuters, 20 January 2020, https://jp.reuters.com/article/us-google-eu/alphabet-ceo-backs-temporary-ban-on-facial-recognition-microsoft-disagrees-idUKKBN1ZJ18O>

‘Is Microsoft AI helping to deliver China’s ‘shameful’ Xinjiang surveillance state?’, Zak Doffman, Forbes, 15 May 2019, <https://www.forbes.com/sites/zakdoffman/2019/03/15/microsoft-denies-new-links-to-chinas-surveillance-state-but-its-complicated/>

‘The Artificial Intelligence Act’, the AI Act website, < https://artificialintelligenceact.eu/>

‘Stop Facial Recognition Technology’, The Big Brother Watch, <https://bigbrotherwatch.org.uk/campaigns/stop-facial-recognition/#breadcrumb>

‘Racial discrimination in facial recognition technology’, Alex Najibi, Harvard blog on science policy and social justice, 24 October 2020, <https://sitn.hms.harvard.edu/flash/2020/racial-discrimination-in-face-recognition-technology/>

‘Explained: the live facial recognition technology the Met Police is using in London’, Seren Morris, Evening Standard, 15 July 2022, <https://www.standard.co.uk/news/uk/what-is-live-facial-recognition-met-police-technology-london-oxford-circus-b1012429.html>

‘How China uses facial recognition to control human behaviour’, Alfred Ng, CNET, 11 August 2020, <https://www.cnet.com/news/politics/in-china-facial-recognition-public-shaming-and-control-go-hand-in-hand/>

‘UK – Empty threats? What’s next for the £7.5m Clearview AI fine?’, Peter Church, Linklaters DigiLinks, 27 May 2022, <https://www.linklaters.com/en/insights/blogs/digilinks/2022/may/uk—empty-threats—what-next-for-the-clearview-ai-fine>

‘Landmark UK court ruling finds police use of facial recognition technology unlawful’, Reuters, 11 August 2020, < https://www.reuters.com/article/us-britain-tech-privacy-idUSKCN2572B8>

‘Guidelines 05/2022 on the use of facial recognition technology in the area of law enforcement’, European Data Protection Boad, 12 May 2022, <https://edpb.europa.eu/system/files/2022-05/edpb-guidelines_202205_frtlawenforcement_en_1.pdf>

UN Net Zero Emissions By 2050 Target Grips The Shipping Industry By Neck

Briefing by Divya Tejwani

Overview

90% of everything we consume is moved by sea. The shipping industry is responsible for around 940 million tonnes of CO2 annually, which is at least 2.5% of the world’s total CO2 emissions. The IMO has set a target to cut these emissions by 50% by 2050.[1]

A consortium has come together internationally to tackle the problem of CO2 emissions in the shipping sector. This consortium is building and testing a carbon capture system onboard an oil tanker for the next two years. This united front of the maritime industry was presented at Singapore Bunkering Conference and Exhibition (SIBCON) 2022 on Wednesday, October 5 2022, in a joint press release by the companies.

The Global Centre is carrying out the construction and testing of a carbon capture system for Maritime Decarbonisation (GCMD) in Singapore, the Oil and Gas Climate Initiative (OGCI), Stena Bulk, manufacturing company Alfa Laval, the American Bureau of Shipping, The Netherlands Organisation for Applied Scientific Research (TNO) and Deltamarin, which provides ship services for marine and offshore industries. The carbon capture system project will be built onboard a medium-range tanker owned by shipping firm Stena Bulk, which targets at least 30% absolute carbon dioxide capture, or about 1,000 kilograms per hour.[2]

After the pressures faced by the maritime sector on decarbonising and meeting net zero emissions by 2050, the carbon capture system is bound to be under hawk-eye watch. GCMD views shipboard carbon capture as one of the mid-term solutions needed to help the maritime sector to decarbonise,” said GCMD CEO Lynn Loo.[3]

The companies in the press conference also assured at the first phase of the project involving conceptual design on front-end engineering study will be completed in the first quarter of 2023, which will be followed by engineering procurement, construction of a prototype shipboard carbon capture system and onshore commissioning while the last phase of the project will involve fusing the carbon capture system with the tanker and conducting sea trials.

Societal and legal impact

If successful, the carbon capture system will have a significant economic and ethical impact on the shipping sector globally. For the next two years, it will be a wait-and-watch game for the whole maritime industry. All eyes are on the carbon capture system!

For the UK specifically, this might not just affect the international front, to the IMO, but also domestically, as it is the first major economy to set legally binding carbon budgets and legislate to end its domestic contribution to climate change under Climate Change Act 2008.

The success of the carbon capture system will have an impact on Clean Maritime Plan (2019), the Transport Decarbonisation Plan(2021) and Net Zero Strategy (2021). All three plans will have a higher probability of amendment monetarily and economically in the long term if the carbon capture system gains approval successfully at a global scale as initiated by the consortium.

Sources

[1] https://www.ukri.org/news/shipping-industry-reduces-carbon-emissions-with-space-technology/#:~:text=The%20shipping%20industry%20is%20responsible,the%20world’s%20total%20CO2%20emissions.

[2] https://www.marinelink.com/news/new-project-aims-capture-carbon-emissions-499945

[3] https://www.reuters.com/business/energy/consortium-kicks-off-project-capture-carbon-emissions-onboard-oil-tanker-2022-10-05/