In an amicus brief to the European Court of Human Rights, ARTICLE 19 warned that the use of facial recognition technology in Russia is creating a chilling effect on the right to freedom of expression and the right to freedom of assembly and association. The applicant in this case held a solo demonstration without notifying the authorities, for which he was added to a list of wanted persons based on captured video footage posted on social media. Facial recognition deployed in the Moscow metro was able to identify him after the fact and he was subsequently fined for failing to notify authorities of his protest. In the amicus, ARTICLE 19 outlines how biometric technologies can be used to track individuals who exercise their right to protest and also how the expansive use of facial recognition endangers the right to anonymity.
In the case of Nikolay Sergeyevich Glukhin v Russia, the applicant was arrested by police on a train after facial recognition cameras identified him from a wanted persons’ list. He had previously held a solo demonstration without submitting prior notification to the authorities. He was then convicted of an administrative offence for breaching the notification procedure for the conduct of public events. The evidence that was brought against him consisted of screenshots from a video published on a messaging app and then the recordings from the metro surveillance cameras.
Facial recognition technology captures and then stores, often for an undetermined amount of time, highly sensitive and personal data. Its very nature is directly linked to the exercise of several fundamental rights, particularly freedom of expression and freedom of assembly and association. This case demonstrates how invasive this technology can be and how it can be instrumentalised to restrict an individual’s right to protest and right to privacy. Here, we see how governments can use technology to monitor and track individuals, potentially even allowing them to crack down on and prosecute any dissent.
This is highly concerning. If governments can use advanced technology to quash any forms of dissent this directly puts at risk certain categories of individuals, namely journalists and activists who may be discouraged from carrying out their work if they know they are constantly being watched. The chilling effect on freedom of expression and freedom of assembly is undeniable.
ARTICLE 19 believes that the almost unchecked use of these types of technologies is a grave threat to freedom of expression. If people know they are being watched they are less likely to express themselves freely in public spaces, thus hindering meaningful public participation and decreasing the likelihood someone will choose to exercise their right to freedom of assembly and association. Indeed, the use of these technologies in public spaces renders the right to anonymity nearly impossible.
Our submission raises concerns about the necessity and proportionality of the use of these technologies. Studies have shown that facial recognition is not always accurate, particularly for underrepresented or historically disadvantaged groups. They are also deployed with little to no oversight and their use has already been called into question by various courts. We believe that less intrusive means could be used to achieve the same aim.
In light of the above, we draw attention to the following in our submission:
- These types of technologies have been developed and deployed without sufficient legal frameworks to protect the rights at stake. A lack of precise and specific legal standards has left room for misuse. Governments have deployed these technologies without implementing sufficient legal frameworks that limit their use and prevent the unlawful collection of large amounts of personal data. As a consequence, individuals’ rights have not been sufficiently protected, leading to cases like the present where severe violations of the right to privacy and the right to assembly have occurred.
- These technologies collect and process large amounts of personal and sensitive data. Therefore, individuals should be aware that their data is being collected, what it is being used for and how long it will be stored and be able to consent to its collection. There is a need to increase transparency on how these technologies work and how exactly they are being used.
- The use of facial recognition technology is in direct opposition to the right to anonymity. Anonymity is a key factor in the right to privacy. As mentioned above, people are less likely to express themselves in public if they know they can be tracked or identified at a later date. At any time, these tools could be used to surveil and identify those who oppose the government and cause a chilling effect on public participation. Therefore, any interference with the right to anonymity should be subject to the three-part test of legality, necessity and proportionality in order to check the technology’s compliance with the right to privacy and the right to freedom of expression in particular.
- Due to the invasive nature of these technologies and their direct interference with fundamental rights, States should ensure that effective remedies and appeals mechanisms are in place to address any potential violation caused by their deployment and use.