Legal protections must come before the introduction of facial
recognition technology

22 June 2022

With the recent debate around the potential use of facial recognition cameras in Adelaide CBD, we as a community need to ask: what level of mass surveillance are we prepared to accept, and who will watch the watchers if such technology were to be introduced?

It is natural that law enforcement authorities would want to take advantage of the latest technology to help them prevent and investigate crime, but without a clear set of rules to govern the use of the technology, we risk sacrificing dearly-held rights and freedoms.

The Law Society’s view on facial recognition technology, or indeed any surveillance and data mining technology, has always been that there needs to be legislative safeguards against the misuse of the technology and collection of data.

To our mind, this an uncontroversial position. If the State, or indeed a private company, is going to wield extraordinary surveillance powers, there should be legally enshrined checks and balances on their use of it.

In a statement, SAPOL stated that facial recognition technology would significantly speed up investigations.

Commissioner Grant Stevens also said on radio that there were no legislative restrictions on the use of facial recognition technology in South Australia for police investigations.

This points to one of the key problems. There are no laws that set clear parameters around the use of mass surveillance technology.

In the Society’s view, our State Parliament needs to engage in appropriate consultation and establish a regulatory framework that:

  • Ensures facial recognition technology can only be used for specific, clearly defined reasons;
  • Requires authorised users of facial recognition technology to disclose their use of facial recognition technology and their purpose for using it;
  • Requires that authorised use of facial recognition technology be reasonable and proportionate;
  • Requires users of facial recognition technology to manage, store and delete data in a timely and safe manner;
  • Requires users to notify impacted people in the event of a data breach ; and
  • Enables people to seek redress if adversely affected by the use of facial recognition technology.

The lack of legislative protections around the use of facial recognition data considerably heightens the risk of data being misused, of people being unfairly targeted or being monitored without a legitimate reason. An absence of strict legal boundaries also means that the application technology could be significantly expanded. For example, there is no guarantee that a facial recognition scheme, if implemented in SA, would not be used to enforce parking infringements.

We don’t expect that the police would willfully misuse the data or use it heavy-handedly, and we acknowledge that enhancing SAPOL’s evidence gathering capabilities could help keep the community safe, but we should not just rely on assurances that our privacy won’t be unduly compromised – it needs to be protected in law. With revelations that major retail outlets such as Bunnings, Kmart and The Good Guys have used facial recognition in their stores, it is critical that these entities are bound by strict privacy and data collection obligations.   

To make it clear: it is not the introduction of facial recognition that the Society objects to. It is the implementation of an unregulated surveillance regime that we have serious concerns about.

Reviews of other jurisdictions who used facial recognition have revealed flaws in the accuracy of the technology. Currently, the technology still poses a substantial risk of mistaking people’s identity, particularly people of colour. We would expect that any such technology used in SA would be subject to rigorous testing to verify its accuracy, before it went “live”.

In addition to a strong regulatory regime for mass surveillance technology, the Society believes South Australians should be able to seek a remedy for invasions of privacy that cause serious harm. Currently, an invasion of privacy not regarded as a “civil wrong” (examples of civil wrongs include negligence and defamation).

With the ever-expanding ability of State authorities and private entities to track, monitor, and profile us, we think it’s more important than ever to legislate a remedy for breach of privacy.

The question of how facial recognition should be regulated will be discussed at a public forum on Monday at Adelaide Town Hall. I am pleased to be part of the panel which includes former Human Rights Commissioners Ed Santow, Greens MLC Tammy Franks and University of Technology Sydney social justice expert Lauren Perry.

Monday’s panel discussion should be the start of extensive consultations leading to the introduction of robust privacy protection laws before any new camera is turned on.