Three Laws Blog: Law and Artificial Intelligence

Loideain on Lawfulness and Police Use of Facil Recognition in the UK: Article 8 ECHR and Bridges v. South Wales Police @NoraNiLoideain

Nora Ni Loideain, Information Law & Policy Centre; University of Cambridge, Faculty of Law, Faculty of Humanities, is publishing Lawfulness and Police Use of Facial Recognition in the UK: Article 8 ECHR and Bridges v South Wales Police in Facial Recognition in the Modern State (R. Matulionyte and M. Zalnieriute, eds., Cambridge University Press 2024).

Police use of facial recognition is on the rise across Europe and beyond. Public authorities state that these powerful algorithmic systems could play a major role in assisting to prevent terrorism, reduce crime, and to safeguard vulnerable persons. There is also an international consensus that these systems pose serious risks to the rule of law and several human rights, including the right to private life, as guaranteed under the European Convention on Human Rights (ECHR). The world’s first case examining the legality of a facial recognition system deployed by police, Bridges v South Wales Police, thus remains an important precedent for policymakers, courts, and scholars worldwide. This chapter focuses on the role and influence of the right to private life, as enshrined in Article 8 ECHR, and the relevant case law of the European Court of Human Rights, in the ‘lawfulness’ assessment of the police use of live facial recognition in this landmark case. A framework which the Court of Appeal for England and Wales held was ‘not in accordance with the law’ and therefore in breach of Article 8 ECHR. The analysis also identifies and proposes new legality safeguards for police use of facial recognition. Finally, the chapter considers the importance of the emerging policy discourse prompted by Bridges in the UK surrounding the need for new legislation, a significant shift away from the current AI governance approach of combining new ethical standards with existing law.

Download the essay from SSRN at the link.

Ringel and Reid on Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata @evanringel3 @UNC

Evan Ringel and Amanda Reid, both of the University of North Carolina, Chapel Hill, have published Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata and First Amendment Challenges at Communication Law and Policy, 2023, AHEAD-OF-PRINT at 1. Here is the abstract.

This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is two-fold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT. The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) Agents of Use; (2) Limitations on Use; (3) Accountability of Use; (4) Evaluation of Use; and (5) Enforcement of Permitted Use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.

Download the article from SSRN at the link.

Selinger and Leong on The Ethics of Facial Recognition Technology @EvanSelinger @BrendaKLeong

Evan Selinger, Rochester Institute of Technology, Department of Philosophy, and Brenda Leong are publishing The Ethics of Facial Recognition Technology in The Oxford Handbook of Digital Ethics (Carissa Velig, ed., Oxford, 2021). Here is the abstract.

This is a comprehensive presentation of leading ethical issues in debates about facial recognition technology. After defining basic terms (facial detection, facial characterization, facial verification, and facial identification), the following issues are discussed: standards, measures, and disproportionately distributed harms; erosions of trust; ethical harms associated with perfect facial surveillance; alienation, dehumanization, and loss of control; and the slippery slope debate.

Download the essay from SSRN at the link.