Law Times

LAW TIMES 10 COVERING ONTARIO'S LEGAL SCENE | MARCH 11, 2019 www.lawtimesnews.com BY MARG. BRUINEMAN For Law Times T oronto criminal defence lawyer Jordan Donich says he has concerns about the possible uses of facial recogni- tion technology. The principal of Donich Law draws a parallel to how one's digital movements online can be tracked through the individual's IP address with the help of in- ternet service providers. Wide- spread use of facial recognition technology, he fears, may allow the physical tracking of people as is sometimes done through the vast network of CCTV (closed- circuit television) cameras that allow video surveillance. "As data becomes cheaper and cheaper to store and as technol- ogy continues to get better, the question then is: How long does the data get stored for? Do we just have endless supply of recorded human history, which can later be used to identify someone at a scene or be used as evidence to convict somebody?" he says. The boundary between the application of that emerging technology and where it inter- sects with individual rights is a topic of interest for the federal privacy commissioner. Last summer, media reports said Cadillac Fairview had em- bedded facial recognition tech- nology into its digital directories in some Canadian malls as a means of monitoring mall traf- fic and getting a handle on the gender and approximate age of its shoppers. In August, federal Privacy Commissioner Daniel Ther- rien announced the department would launch an investigation into the use of the technology, along with the Information and Privacy Commissioner of Al- berta. The commercial landlord then announced it was suspend- ing the practice pending the out- come of the investigations. "It's one of these situations we see a lot where technology gets out in front of both the regula- tory response and people's un- derstanding" of what could be a potential privacy problem, says Toronto privacy lawyer Mark Hayes, founding partner at Hayes eLaw LLP. "If you're doing any analysis by using some kind of biometric information, which facial recognition is, you're going to be potentially offside on the privacy side." Facial recognition systems in- volve the use of a camera to cap- ture an image, an algorithm to create a faceprint, a database of stored images and an algorithm to compare the captured image to the database of images to clas- sify the face into categories such as gender or age. It can also be used for verification or identifi- cation purposes, says Hayes. Part of the problem, he says, is that the technology continues to be developed and perfected, meaning current iterations aren't particularly reliable. But when facial recognition software does get to the point that it can accurately identify and track people, Hayes says he is concerned that it may reduce the individual's privacy in a public place and in semi-public places, such as malls. "[In] Europe, they're far ahead of us in terms of recognizing that these kinds of systems could be potentially harmful. They have a lot of regulation around them," says Hayes. He says identifying issues involves understanding how facial recognition technology is used. He says people are often not aware of the existence of surveillance cameras or CCTVs, for instance, but they've become almost ubiquitous, often provid- ing a video trail of an individu- al's movements. Add facial recognition soft- ware to those cameras, he says, and that can produce not just a trail of information about a per- son's actions but also of that per- son's identity. "I think we have to take very seriously that there is a lot of this technology out there and we don't necessarily know when it's being used unless somebody inside the organization reports it [is being used] or it's being used against someone [and there's a complaint]," he says. He says "some additional regulation or guidelines coming from the pro- vincial or federal governments [regarding] when facial recog- nition software can or can't be used" would be helpful. The public, he adds, needs to learn more about what it is and what it can do as do companies and organizations considering using this technology so that they understand the circum- stances under which it's appro- priate to use facial recognition technology. The Personal Information Protection and Electronic Doc- uments Act and the Privacy Act lay out how technology might be used and its limitations in both the public and private sec- tor, says Chantal Bernier, who served as the interim privacy commissioner of Canada from 2013 to 2014 and is now counsel with Dentons Canada LLP in Ottawa. But, she adds, federal guide- lines specific to facial recogni- tion technology could offer some clear direction. Police and other organiza- tions run by the state must dem- onstrate that using facial rec- ognition software is necessary, such as at the border or in crowd management, she says. Then its use must be proportionate, where there's no more invasion of privacy than is necessary for public safety, she says. It must also prove it has no choice but to employ the technology, she adds. Bernier points to Passport Canada's facial recognition proj- ect, which relies upon the tech- nology to ensure the applicants do indeed correspond with the identification they put forward as a means to prevent against fraud. She says a privacy impact as- sessment determined there was a basis for legitimate use of facial recognition technology but that the organization would have to ensure it minimizes risk that certain individuals could be dis- proportionately affected. It also recommended that the database be encrypted. But she points to the 2011 Vancouver riots after the Ca- nucks lost the Stanley Cup as an example of where it was deter- mined that the use of the tech- nology would be inappropriate. British Columbia's insurance Jordan Donich says widespread use of facial recognition technology may allow the physical tracking of people. Facial recognition technology raises concerns FOCUS LawTimesNews.com Fresh Ontario legal news and analysis available on any device. 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