Technical and Legal Challenges of the Use of Automated Facial Recognition Technologies for Law Enforcement and Forensic Purposes

Abstract

[Abstract]: Biometrics covers a variety of technologies used for the identification and authentication of individuals based on their behavioral and biological characteristics. A number of new biometric technologies have been developed, taking advantage of our improved understanding of the human body and advanced sensing techniques. They are increasingly being automated to eliminate the need for human verification. As computational power and techniques improve and the resolution of camera images increases, it seems clear that many benefits could be derived through the application of a wider range of biometric techniques for security and surveillance purposes in Europe. Facial recognition technology (FRT) makes it possible to compare digital facial images to determine whether they are of the same person. However, there are many difficulties in using such evidence to secure convictions in criminal cases. Some are related to the technical shortcomings of facial biometric systems, which impact their utility as an undisputed identification system and as reliable evidence; others pertain to legal challenges in terms of data privacy and dignity rights. While FRT is coveted as a mechanism to address the perceived need for increased security, there are concerns that the absence of sufficiently stringent regulations endangers fundamental rights to human dignity and privacy. In fact, its use presents a unique host of legal and ethical concerns. The lack of both transparency and lawfulness in the acquisition, processing and use of personal data can lead to physical, tangible and intangible damages, such as identity theft, discrimination or identity fraud, with serious personal, economic or social consequences. Evidence obtained by unlawful means can also be subject to challenge when adduced in court. This paper looks at the technical and legal challenges of automated FRT, focusing on its use for law enforcement and forensic purposes in criminal matters. The combination of both technical and legal approaches is necessary to recognize and identify the main potential risks arising from the use of FRT, in order to prevent possible errors or misuses due both to technological misassumptions and threats to fundamental rights, particularly—but not only—the right to privacy and the presumption of innocence. On the one hand, a good part of the controversies and contingencies surrounding the credibility and reliability of automated FRT is intimately related to their technical shortcomings. On the other hand, data protection, database custody, transparency, accountability and trust are relevant legal issues that might raise problems when using FRT. The aim of this paper is to improve the usefulness of automated FRT in criminal investigations and as forensic evidence within the criminal procedure.