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Biometric Technologies and Freedom of Expression 2021 First Published by ARTICLE 19 in April 2021 When bodies become data: Biometric technologies and freedom of expression 2021 First published by ARTICLE 19 in April 2021 ARTICLE 19 works for a world where all people everywhere can freely express themselves and actively engage in public life without fear of discrimination. We do this by working on two interlocking freedoms, which set the foundation for all our work. The Freedom to Speak concerns everyone’s right to express and disseminate opinions, ideas and information through any means, as well as to disagree from, and question power-holders. The Freedom to Know concerns the right to demand and receive information by powerholders for transparency good governance and sustainable development. When either of these freedoms comes under threat, by the failure of power-holders to adequately protect them, ARTICLE 19 speaks with one voice, through courts of law, through global and regional organisations, and through civil society wherever we are present. ARTICLE 19 Free Word Centre 60 Farringdon Road London EC1R 3GA UK E: [email protected] W: www.article19.org Tw: @article19org Fb: facebook.com/article19org ISBN: 978-1-910793-43-5 © ARTICLE 19, 2021 This work is provided under the Creative Commons Attribution-Non-Commercial- ShareAlike 2.5 licence. You are free to copy, distribute and display this work and to make derivative works, except for the images which are specifically licensed from other organisations, provided you: 1. give credit to ARTICLE 19 2. do not use this work for commercial purposes 3. distribute any works derived from this publication under a licence identical to this one. To access the full legal text of this licence, please visit: http://creativecommons.org/ licenses/ by-nc-sa/2.5/legalcode. ARTICLE 19 would appreciate receiving a copy of any materials in which information from this document is used. Table of contents Executive Summary 5 Introduction 6 Biometric technologies: background 8 Key terminology 8 Reliability of some biometric technologies 8 The main uses and the dominant narratives behind the deployment of biometric technologies 9 International human rights standards and biometric technologies 11 Applicable human right standards 11 Human rights standards on biometric technologies 13 Human rights responsibilities of the private sector 15 Biometric technologies and the right to freedom of expression and information 16 Biometric technologies and human rights: overall challenges 16 Data collection, storage and retention 16 Possible security breaches 16 ‘Black box’ problem 17 Scale 17 Inadequate or missing national legal frameworks 17 Necessity and proportionality 18 Lack of remedies in cases of human rights violations 18 Biometric technologies and challenges to freedom of expression and information 18 Chilling effect of mass surveillance on freedom of expression 18 Impact on the right to freedom of expression of specific categories of individuals 19 Need for transparency and access to information 19 Biometric technologies and freedom of expression: case studies 21 Facial recognition 21 Purposes and usage of facial recognition technologies 21 Challenges raised by facial recognition to the exercise of human rights 22 Challenges raised by facial recognition to freedom of expression and information 24 Emotion recognition 25 Purposes and usage of emotion recognition technologies 25 Effectiveness of emotion recognition technologies 26 Challenges raised by emotion recognition technologies to human rights 26 Challenges raised by the use of emotion recognition technologies to people’s ability to exercise their freedom of expression 27 ARTICLE 19’s recommendations 28 Endnotes 32 3 Executive summary In this policy, ARTICLE 19 outlines its position on the effects that the development and deployment of biometric technologies have on the right to freedom of expression. This policy is motivated by concerns about the rapid and increased use of biometric technologies not only by the private sector but also by public authorities. Biometric technologies are being used to analyse the way people act, look, and express themselves in public and private spheres. Their use ranges from border patrol to unlocking a smartphone, but one thing is clear: their use is being normalised. These technologies have the power to change the way people act in public spaces and therefore risk the very existence of civic space, an essential pillar of democracy, that allows public participation and exercise of human rights. State or private actors who design, develop and deploy biometric technologies must do so using a human rights approach in order to protect individuals’ fundamental rights. In particular, ARTICLE 19 highlights the following concerns: • Increased mass surveillance of public spaces using biometric technologies, including facial recognition and emotion recognition, will undoubtedly create a severe chilling effect on freedom of expression and public participation. • States and the private sector are developing and deploying biometric technologies without considering the harm they may cause to people’s lives and how they might prevent people’s ability to exercise their human rights. This is very concerning as they can use these types of technologies in ways that are highly intrusive, violate the rights to right to freedom of expression and privacy and do not adequately protect personal data. • There is a severe lack of accountability. State or private actors have not put in place effective mechanisms for potential victims to claim remedies for violations of their rights. If, for example, people face discrimination as a result of the use of face recognition, it is unclear how this issue would be addressed and how and if any remedies will be provided. • Lastly, the availability of a particular biometric technology (or any technology) should not automatically justify its use. The design of the technologies means they are ripe for abuse, open to security breaches and indicate several biases. Rather than placing technology at the service of human beings or designing solutions that solve existing problems, the push to develop tools and products for their own sake is fundamentally flawed. For these reasons, ARTICLE 19 warns against the use of biometric technologies, especially on national security and counterterrorism grounds, without a sufficient legislative framework to protect human rights. We consider that a human rights-based 4 approach ought to be embedded at the start of the design and development of any technology. Therefore, we call for a moratorium on the development and deployment of all biometric technologies by both States and private actors until they can ensure the full protection of freedom of expression and full compliance with international human rights standards. This policy brief is divided into five parts. First, we outline key background information and terminology concerning biometric technology. Second, we outline all relevant international standards on freedom of expression applicable to biometric technology. This is followed by a section on how the use and abuse of these technologies obstruct people from exercising their human rights with a particular focus on how they prevent people from exercising their right to freedom of expression and information. We then provide two cases studies - one on how facial recognition limits freedom of expression and the other on how emotion recognition limits freedom of expression. Finally, we make a list of comprehensive recommendations directed at States, private companies, and all other relevant stakeholders. Summary of recommendations: 1. States should ban biometric mass surveillance 2. States should ban the design, development and use of emotion recognition technologies 3. Public and private actors who design, develop and use biometric technologies should respect the principles of legitimacy, proportionality and necessity 4. States should set an adequate legislative framework for the design, development and use of biometric technologies 5. Government authorities must ensure that the design, development and use of biometric technologies are subject to transparency and open and public debate 6. Transparency requirements for the sector should be imposed and thoroughly implemented by both public and private sectors 7. States should guarantee accountability and access to remedies for human rights violations arising from biometric technologies 8. The private sector should design, develop and deploy biometric systems in accordance with human rights standards. 5 Introduction Around the world, governments and private actors who use identification and verification systems increasingly rely on biometric data - from fingerprints and DNA samples to more advanced biometric technologies that aim to identify persons on the basis of their physical traits, behaviour or activities.1 Public and private actors now use these technologies in various settings for the real-time measurement and analysis of the way people look, sound, move and behave. These technologies are increasingly applied in areas such as crime and border control, advertising or marketing;2 they are a popular tool to unlock a smartphone, access an online bank account or even access physical and other online spaces.3 Their massive use is, however, not necessarily limited to the identification of people. It also results in profiling and categorising people based on age, gender, skin colour, surveilling what they are doing, with whom, how they are feeling and even how they are likely to behave in the future. Biometric technologies
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