The Delhi Govt. is using facial recognition on children in Govt. schools

tl;dr

Through RTI requests, we were made aware of the ongoing use of facial recognition technology on minors in Government schools in the NCT of Delhi. Mindful of the possible violations of the right to privacy of minors under Article 21 of the Constitution as well as the right to free and compulsory education under Article 21A and the Right of Children to Free and Compulsory Education Act, 2009, we wrote to the Delhi Commission for Protection of Child Rights (DCPCR) urging them to step in to protect child rights in Delhi.

What happened?

On December 17, 2020, we filed a Right to Information (RTI) request with the Education Department of the Government of NCT of Delhi. Our queries in the request related to the use of facial recognition technology in conjunction with the CCTV cameras installed by the Delhi Government in all government schools in the national capital. Our request stemmed from the Delhi Government’s decision to install CCTV cameras in more than 1,000 schools which operate under them. Worried about possible privacy violations as well as use of harmful facial recognition technology in conjunction with the CCTV cameras installed in schools, we asked the Education Department to provide us with information about:

1. the total number of CCTVs installed in government schools;

2. whether facial recognition technology is being used in conjunction with the CCTV cameras and if yes, its purpose and legality;

3. individuals/organisations who may have access to the CCTV feeds;

4. whether there is any Standard Operating Procedure (SOP) or regulation in place to ensure that CCTVs are not misused and that the feed is not accessed illegally;

5. the duration for which the CCTV feed is stored or retained; and

6. the purpose of the installation.

Over the course of the next month, we received more than 100 replies from various schools under the Delhi Government as the Education Department simply transferred our request to the schools and did not answer any of our queries themselves. Multiple schools, in their responses, confirmed our suspicion that facial recognition technology was indeed being used in conjunction with CCTV cameras in their premises. We also received many replies refusing to provide information by saying that the query relates to the Education Department, thereby indicating that facial recognition may still be in use at those schools even though they have not responded in the affirmative.

The decision to employ facial recognition technology in government schools, and operate such technology in respect of minors, violates their constitutional right to privacy as well as adversely impacts the right to education, and the directions of the Hon’ble Supreme Court. Similar use in the United States has been criticised by civil society organisations like the Electronic Frontier Foundation and New York Civil Liberties Union (the New York affiliate of the American Civil Liberties Union) which eventually led the State of New York to introduce a moratorium on the use of facial recognition in schools.

How does this impact children in Delhi schools?

In K.S. Puttaswamy v. Union of India (2019) 1 SCC 1, the Supreme Court had the occasion to consider the unique nature of the right to privacy of minors. As minors lack legal capacity to give consent, violations of the right to privacy must be minimized bearing in mind the need to ensure the welfare of the child. The Court further considered the non-derogable nature of the right to education under Article 21A and the RTE Act. These factors must be taken into account in examining the legality of measures affecting the right to privacy of minor children.

As per the Hon’ble Supreme Court's decision in Justice K.S. Puttaswamy vs Union of India (2017 10 SCC 1), any justifiable intrusion by the State into people’s right to privacy protected under Article 21 of the Constitution must conform to certain thresholds. These thresholds are:

1. Legality

The intrusion must take place under a defined regime of law. There must be an anchoring legislation, with a clear set of provisions. In the absence of such a framework and safeguards, the first requirement for lawful restriction on the right to privacy is not met. As can be seen from the responses, there seems to be no clear Standard Operating Procedure (SOP) in place for regulating how facial recognition technology is to be used by these schools. Further, the responses also fail to engage with our query relating to the legality of this use. Specific laws with regard to facial recognition do not currently exist in India. Deployment of facial recognition without adequate legal safeguards is deeply troubling.

2. Necessity

The infringement of people’s privacy must be necessary in a democratic society to fulfill a legitimate state aim. In some of the responses above, the schools have stated that use of facial recognition technology in their premises is necessary for security and surveillance purposes. This characterisation is based on a faulty assumption that facial recognition technology is accurate and would provide speedy and correct results. However, ongoing research in the field has shown that facial recognition technology which is completely accurate has not been developed yet. Use of such inaccurate technology will thus result in misidentification.

3. Proportionality

The Government must show among other things that the measure being undertaken has a rational nexus with the objective. Facial recognition contemplates collecting sensitive personal information, intimate information of all individuals in the absence of any reasonable suspicion. This could cast a presumption of criminality on a broad set of people. In the Supreme Court’s decision in K.S. Puttaswamy v. Union of India (2019) 1 SCC 1 or the Aadhaar judgment, the Hon’ble Supreme Court held that:

“[u]nder the garb of prevention of money laundering or black money, there cannot be such a sweeping provision which targets every resident of the country as a suspicious person.”

While this statement was made in the context of rejecting the mandatory linkage of Aadhaar with bank accounts to counter money laundering, it clearly shows that the imposition of such a restriction in every Government school classroom, without any evidence of wrongdoing on the part of the children, would constitute a disproportionate response. Similarly, collecting sensitive personal information of all children who come under the gaze of a camera enabled with facial recognition technology creates a presumption of criminality which is disproportionate to the objective it aims to achieve.

4. Procedural safeguards

Where there is an appropriate independent institutional mechanism, with in-built procedural safeguards aligned with standards of procedure established by law which are just, fair and reasonable to prevent abuse. At present, there is no independent institutional mechanism which would put in place procedural safeguards which will regulate the proposed projects. In the absence of any checks and balances, function creep becomes an immediate problem wherein the issue of facial recognition being used for functions more than its stated purpose becomes a reality. While a flawed Personal Data Protection Bill has been introduced in the Parliament, there is uncertainty about when it will be enacted and implemented and how effective it will be in protecting the personal data of individuals. Under the current version of the Bill, wide exceptions have been provided to the Government for surveillance related activities. A strong data protection legislation is needed to hold these FRT systems accountable in terms of collection, storage and usage of data including sharing of data across government agencies and with third parties. Here, it is also essential to recognise that the data in the present situation relates to minors, who should ideally be given a higher level of protection.

Use of invasive technologies such as facial recognition in schools on children results in disproportionate penalties being imposed on children for minor wrongdoings, thereby curtailing their spirit. Such use on children is also problematic because as they grow changes in their appearance would make this faulty technology even more inaccurate. If a student is misidentified, they could end up having a traumatic experience which would include disciplinary action, loss of class time and potentially, unnecessary interaction with the Police leading to a criminal record.

Our recommendations

Therefore, we urged the DCPCR to take appropriate steps in exercise of powers under the RTE Act as well as the Commissions of Protection of Child Rights Act to ensure safeguards against violations of child rights. In particular, we urged them to consider the need for the following steps:

1. The Commission must recommend that an immediate ban should be placed on the use of facial recognition technology in schools within the territory of Delhi.

2. A review should be conducted of existing CCTV practices in schools within the territory of Delhi, including schools controlled by the Delhi Government, examining the impact on the right to privacy as well as access to education.

3. Based on the review, a privacy respecting SOP should be drafted and adopted by the Commission, to be followed by all schools under the Delhi Government.