The controversial use of facial recognition in Brazil and Europe

In late April, the European Data Protection Supervisor (EDPS) issued an opinion defending the ban of facial recognition technology in Europe due to its “deep and non-democratic intrusion” in the private life of its citizens.

The statement came days after the European Commission’s proposal to use the technology in the search of missing children and criminals, including individuals potentially involved in terrorist activities, a move which was heavily criticized by civil rights groups that raised concerns about the loopholes which, in the future, could allow authoritarian governments to abuse AI and suppress citizen’s rights.

According to the Council of Europe, the use of the technology for the sole purpose of determining a person’s skin color, religious belief, gender, racial or ethnic origin, health condition, age and social status should be prohibited, including “emotion recognition” technologies, that can identify emotions, personality traits, feelings, and even a worker’s level of engagement.

Amidst the ongoing controversy, the EU declared its goal to be the world’s leader in “trustworthy” and “human-centric” artificial intelligence, stating its intention to pass a law on the matter before 2021 is up.

“At its best, facial recognition can be convenient, helping us to navigate obstacles in our everyday lives. At its worst, it threatens our essential human rights, including privacy, equal treatment and non-discrimination, empowering state authorities and others to monitor and control important aspects of our lives – often without our knowledge or consent,” stated Marija Pejčinović Burić, the Secretary General of the Council of Europe. “But this can be stopped. These guidelines ensure the protection of people’s personal dignity, human rights and fundamental freedoms, including the security of their personal data.”, she added.

In Brazil, the use of facial recognition technologies has been raising concerns given the increase of its use by private companies and branches of government. According to a study by Instituto Igarapé, Brazil now has over 37 cities using facial recognition technology in the public safety, transportation and border control sectors.

Biometric technology has also been adopted by a range of Brazilian companies, such as the concessionary of São Paulo’s subway system, which used facial recognition to identify the emotions of its passengers in order to personalize the advertisements displayed in respective wagons. A similar technology was used by fashion giant Hering, which set up a system in its São Paulo-based stores to study the behavior of its customers and create tailor-made marketing strategies. With the advent of the General Data Protection Law (LGDP) in Brazil, however, the use of this technology by private companies is now considered illegal.

“In Brazil, there is still no specific legislation addressing this subject, despite the proposal of many bills discussing artificial intelligence. In any case, we already have an entire legislative system which can be applied in certain situations, like the LGPD, the Brazilian Civil Rights Framework for the Internet, the Civil Code and even the Federal Constitution. Moreover, there are already decisions in Brazil regarding this issue, like the recent conviction of ViaQuatro, the concessionary responsible for the operation and maintenance of Line 4 of São Paulo’s subway, due to the use of electronic facial recognition systems.”, stated Luiza Sato, partner and head of the data protection practice at São Paulo-based firm ASBZ Advogados.

Nevertheless, the LGPD leaves a door open when referring to the use of facial recognition technology by the government in matters regarding public safety, national defense, state security, investigative activities and the repression of criminal activities. These loopholes have recently generated much criticism regarding the potential infringement of citizen privacy by the Brazilian government.

“Despite the ongoing regulatory debates, the adoption of facial recognition technology appears to be an irreversible trend. In some scenarios, its use must be regulated, but every ban should undergo cautious analysis, because despite the potential risks for privacy and data protection, we are talking about a technological advance that, undeniably, brings benefits to society, especially regarding security.”, stated Luiz Fernando Prado, founding partner of data protection boutique, Prado Vidigal Advogados. “In my view, legislation should require this technology to be improved instead of simply vetoing its use. If there are risks, we should work to reduce them, because it is a less radical path and more beneficial to society than the banning of specific technologies.”, concluded Mr. Prado.

Due to ongoing debates, regulatory authorities have been pressured to act and, in recent months, Brazil’s congress has held over 20 legislative assemblies on the matter, in addition to two legislative bills currently under analysis.

“It would be a welcome if Brazil implemented strong laws and regulations on the matter and facial recognition systems were developed respecting compliance-by-design guidelines. Just as GDPR became the global standard for data protection, it is possible that countries, including Brazil, might want to follow the high standard of artificial intelligence and facial recognition compliance adopted by the European Union.”, added Ms. Sato.

By: Ana Luisa Ferrari