When a citizen challenged the runaway use of facial recognition by Hyderabad police: Key points

As we report on how the Hyderabad police justified the use of facial recognition technology (FRT) in court, it is time to revisit the petition that challenged the use of FRT in court and sought the city police’s response. The petition was filed by SQ Masood in January 2022 with Internet Freedom Foundation’s (IFF) assistance and was the first legal challenge to the rising use of FRT in India.

In 2020, Telangana was identified as the most surveilled place in the world with highest number of ongoing facial recognition projects in the country. Several instances of the Hyderabad police randomly scanning faces of people in public spaces were reported in recent years.

Masood, a social activist and co-founder of Democracy Dialogue, was affected by such an exercise in 2021. While he was returning home, a group of police officers directed him to remove his mask and captured a picture of him without his consent. Apprehensions about how and where the picture can be used urged Masood to issue a notice to the police seeking information on the use of FRT and deletion of his data.

When the notice went unanswered, Masood filed a petition on behalf of the residents of Telangana, who are unknowingly being subjected to FRT without any notice on a daily basis.

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Key issues raised in the petition:

1. The petitioner states that the Telangana authorities have been actively indulging in the deployment and expansion of FRT across the state since 2018. This is mainly done by installation and upgradation of CCTV cameras and installation of FRT software in partnership with private firms.
2. The Hyderabad police has access to and contributes to the Crime and Criminal Tracking Network System (CCTNS), a central-level database on arrested persons, convicted criminals and offenders etc maintained by the Home Ministry. The petitioner states that images collected by the state police app on TSCOP for FRT and those captured by the CCTVs are compared with the CCTNS database.
3. According to the petitioner, in collaboration with private firms, the Telangana police is expanding FRS utilizing the CCTV networks for law enforcement. The FRT is also used for mass-identification in real-time, instead of targeted identification.
4. The Telangana police is using FRT via TSCOP app without any limitation to scan faces and match databases, while there are no procedural safeguards for misuse of data that have been published.
5. The petitioner observes that the Telangana state have “placed an entire population of Telangana under near-permanent surveillance” purportedly to protect society against “unspecified and unknown threats”.

The petitioner challenged the use of FRT by the Hyderabad police on following grounds:

A. Violation of Right to Privacy

1. The petition states that the state’s move to deploy FRT and restrict people’s fundamental rights in doing so does not pass the privacy test laid out by the Supreme Court in KS Puttaswamy vs Union of India judgment. According to the judgment, restrictions to fundamental rights can only be imposed if it is legal, the need for it is legitimate and is proportionate.
2. The Telangana police has not disclosed the legal basis for use of FRT for surveillance and law enforcement, despite the petitioner requesting for such information through RTI.
3. The petitioner also states that the implementation of FRT is not in coherence with respect to conditions and safeguards laid out Telangana Public Safety Act 2013 and Identification of Prisoners Act 1920. These Acts enable authorities to use photos or CCTV visuals for investigation purposes under certain conditions.
4. The petition notes that in the absence of a statutory regime underpinning the use of FRT or any other system requiring collection of facial biometrics, the use of FRT is illegal and violation of right to privacy as well as right to life and personal liberty under Article 21.
5. “This illegality cannot be cured or justified on the basis of its purported benefits in advancing law enforcement interests—under the guise of providing better policing – respondents cannot transform society into a police state,” the petitioner notes.
6. Further, the state has failed to provide any clear and legitimate purpose of using FRT. Currently, in Telangana FRT is being deployed for various unstated and vague reasons ranging from crime prevention to identification of criminals and for solving a criminal case.
7. The arbitrary use of FRT ends up targeting all citizens and their fundamental rights. This goes against the proportionality principle which is meant to ensure that rights are not being restricted beyond what is necessary.

 B. No procedural safeguards

1. The petitioner states that at present, the Telangana police has complete control over the methods of collecting visuals of people forcibly through multiple means, including covertly collecting pictures through CCTV networks. This is done without any procedural safeguards in place to prevent misuse of such data which can pose a threat to vulnerable persons, who are at the risk of being profiled.
2. Further, there are no remedial measures available for the affected persons to request information on the data collected, request for its deletion or register a grievance in case of a data theft or data breach.
3. It further adds that deployment of FRT in Telangana lacks transparency and accountability measures. This is because the police has not publicized data related to the technical specifications of the FRT and measures adopted for protection against inherent technical errors and arbitrariness.

C. No ‘probable or reasonable’ cause for using FRT

1. The petition notes that the state has failed to demonstrate that the use of FRT in Telangana is for specific purposes or targeted at individuals who show “a determination to lead a life of crime”.
2. It states that in the current circumstances, the use of FRT in the state is for the purpose of mass surveillance in violation of people’s fundamental rights. The petitioner demanded that the state demonstrate a “probable or reasonable” cause for using FRT to the effect of mass surveillance.

 D. Violation of Right to Equality

1. Since there are no legal guidelines, standards or safeguards for collection and storage of photographs, the petition states the use of FRT for law enforcement is arbitrary and amounts to violation of right to equality guaranteed under Article 14 of the Indian Constitution.
2. The petition states there are uncertainties about 100 percent accuracy of FRT, a loophole which has been associated with bias against specific communities. The lack of accuracy in FRT can lead to inherent biases in the technology, thus going against article 14.
3. It observes, the use of FRT will impose a bias against the marginalised and minority communities, including along the lines of caste, religion, gender and sexuality. Moreover, such an exercise can also lead to “disproportionate data-gathering exercise” which may further be used to criminalise entire communities.

The petition further highlights the harm caused by FRT surveillance and states, though the harms cannot be “quantified in a physical or tangible form, courts have never insisted upon showing a physical injury as a threshold requirement to demonstrate the violation of a fundamental right”. It emphasizes that the extent to which FRT is being used is causing an infringement upon citizens’ right to privacy and rights under article 14, 19 and 21 of the Indian constitution and “prevents people from moving about and meeting other people freely”.

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