Certainty vs flexibility – does the UK need a Biometric Surveillance Act?

By Professor Fraser Sampson, former UK Biometrics & Surveillance Camera Commissioner

Last week London became a city of two tales. Two different surveillance stories show how the UK’s approach to biometric surveillance prefers flexibility over certainty and why, in my view, we need more of the latter.

First was the latest legal challenge to the Metropolitan Police use of live facial recognition (LFR). Welcoming the judgment, the Commissioner warned of the risk of ‘over regulation’. I’m with him on that. As a very different judicial enquiry into the policing of London put it, discretion is the art of suiting action to circumstance and is the police officer’s daily task. The Met have come a long way since their early exuberance in Notting Hill but under-regulation has risks too. Litigation is probably the most expensive, and certainly the least predictable way of making policy. Court victories can be exhilarating – even more so on appeal – but win, lose or draw, seeing your police chief hauled before a judge every few months does little for public confidence, in either the technology or the police use of it. Judicial review is an important accountability mechanism and the continuing lack of overall clarity in the regulation of biometric surveillance means we should expect more challenges. Prominent within that litigious future will be the UK’s other main surveillance bodies: local authorities.

The second story arose a few miles West of New Scotland Yard where Hammersmith and Fulham London Borough Council (LBC) unveiled their new AI-enabled surveillance capabilities which include LFR, aggression alerts and object detection. Why wouldn’t they use new technology to keep the people of the Borough safe? But biometric surveillance isn’t CCTV. Take watchlists for example. While irrelevant to CCTV, one of the most sensitive aspects of facial recognition systems is how someone can end up on a watchlist – it triggered the earliest concerns about police LFR in London and was central to the latest legal challenge against the Met. The LBC plans to ‘auto-enrol’ people onto its watchlists – what does that mean? Will they be swapping faces with the police? Which databases will they compare people against and what they will do with those they identify? False alerts and systems bias are also a challenge for biometric surveillance – both are prevalent in studies of detection capabilities that the council has in its sights.

What the council calls “suspicious shopping activity” will be of more interest to stand-up comedians than surveillance professionals, but citizens of Hammersmith and Fulham might ask why their council is watching shoppers in the first place and whether their biometrics will be shared with local retailers and national supermarkets. They might also ask what the council’s ‘use cases’ for the new technology look like, whether the fly-tipping drones will have facial recognition capability and if their biometrics will be used to enforce council tax, parking and emission zone payments.

Against that background, the council’s message that this will give families peace of mind is baffling. If you’re using AI-enabled surveillance, peace of mind entails trust and confidence, something that the police have been carefully cultivating, as corroborated by the latest court ruling. In short, LFR isn’t a plug-and-play upgrade and crossbreeding biometrics with old school surveillance technology is ill-advised.

Defending the system, the council leader said it will ensure “criminals know there’s nowhere to hide in Hammersmith and Fulham” (how about in a vehicle displaying ghost plates?) but unless they are going to share biometrics with the other 31 boroughs, it’s hard to see how this fits within a London-wide approach.

Skipping quickly past platitudes issued after the Met case (“only the guilty need worry”- seriously minister?), I advised the government several times that the code of practice regulating public space surveillance was incomplete and incoherent; it still is.

While we’re looking at litigation, the sad case of Peck landed the UK in the European Court of Human Rights over 20 years ago and remains a sobering story of what happens when police and local authority street surveillance puts celebration before deliberation and the citizen’s fundamental rights are forgotten.

All London Boroughs share the same police service and the same mayor yet advanced biometric surveillance on the streets of the capital is spreading on a postcode patchwork basis. Amid wider national security concerns over cyber-attacks and foreign state interference with surveillance infrastructure and data feeds, some may be surprised that public bodies can expand their deployment of remote biometric systems largely unchecked and unchallenged across parts of our cities. No doubt someone’s building a phone app so you can check if you’re in an LFR zone while the rest of the city makes its mind up about the technology. Meanwhile, in Edinburgh or Belfast you’ll find a different approach by the police and local authorities which is confusing for public and staff alike.

This what under regulation looks like.

Biometric surveillance offers significant benefits across every public service and we’re going to need them for critical incidents like the next global pandemic. To be ready, we must build confidence and stability for investment in the technology while assuring the necessary legal and societal boundaries around it – we won’t get there by proliferating local policies and waiting to be sued.

The police say LFR is game-changing technology, but the rules can’t vary with the venue. Sometimes the law must be strict in its formulation and certain in its application, both features that former Supreme Court Justice Lord Sales identifies as the great strength of statute over judicial interpretation on a case-by-case basis. The police and local authorities already have flexibility and discretion in several such areas like health and safety and data protection.

AI-enabled technology has fundamentally changed our surveillance relationship with the state and with each other. It needs clear and consistent laws that reflect our social circumstances – surely that’s a matter for parliament?

About the author

Fraser Sampson, former UK Biometrics & Surveillance Camera Commissioner, is Professor of Governance and National Security at CENTRIC (Centre for Excellence in Terrorism, Resilience, Intelligence & Organised Crime Research) and a non-executive director at Facewatch.

Article Topics

biometrics  |  Fraser Sampson  |  law enforcement  |  live facial recognition  |  surveillance  |  UK