Rollback on facial recognition CCTV: no legal justification for intrusive technology

A much-vaunted facial recognition CCTV system will not be deployed in Malta, as privacy rules and a lack of justification for the invasiveness of the Chinese-designed technology would probably make it illegal.

Joseph Cuschieri, a director of the government company Safe City Malta, which is working with Chinese telecommunications giant Huawei, told MaltaToday that although even Prime Minister Joseph Muscat announced the controversial facial recognition CCTV during Budget 2019, Safe City Malta was not deploying it.

“Although the Safe City technology has advanced facial recognition capability, Safe City Malta is not planning to deploy this,” Cuschieri said, instead saying that the CCTV system that will be installed in Paceville and Marsa will be ‘advanced video surveillance’.

“In other jurisdictions, [facial recognition CCTV] has been deployed in situations where sensitive security issues are concerned, such as border controls or where a high risk of terrorism exists. Such deployment would require the scrutiny and clearance of privacy controllers at both national and EU level,” Cuschieri said.

Instead Safe City Malta will be deploying Huawei’s advanced video surveillance, which would still need clearance from data and privacy controllers at national and EU level.

Cuschieri said that advanced video surveillance can detect changes in the areas being monitored, such as a commotion. From a control centre, law enforcement units will be able to have access to the surveillance, while field officers on the beat can be equipped with handheld HD devices that will be transmitted with instant images of problem areas.

“A control centre will be monitoring the areas, but the system will be able to detect unexpected crowd densities or loitering in selected specific areas which is why we call them advanced: they can detect changes that instantly require police intervention.”

Cuschieri said that advance video surveillance can help law enforcement prevent crime by being first on the scene in cases where the system detects changes in the environment it monitors. “We are currently at planning stage and we are formulating detailed plans for deployment for the fourth quarter of 2019.”

UN expert’s view

Critics of the invasive technology will breathe a sigh of relief after both the Prime Minister and the home affairs minister recently said facial recognition CCTV would be deployed in ‘problem areas’ like Paceville and Marsa.

But the United Nations’ special rapporteur on privacy, Prof. Joe Cannataci, had already told MaltaToday when news broke of Safe City Malta’s plans with Huawei, that only a strong justification – such as a risk of a terror attack – could justify such a technology in Malta.

“That strong justification must be provided for by law,” Cannataci said, having just returned from an official UN mission to Germany to examine CCTV systems being deployed by police there.

“Malta’s laws, especially under EU regulations, mean that a privacy-intrusive measure must be both ‘necessary and proportionate in a democratic society’ and even then, the law must provide adequate safeguards. In practice this means that unless there is a real threat of a serious crime such as terrorism, one cannot introduce such a system in a place like Paceville where even there, most crimes are relatively minor or public order crimes with many, such as petty theft, occurring inside bars and clubs.

“The occasional brawl spilling out onto the street or even stabbing may justify the limited use of some CCTV in public spaces, but not the type which is equipped with facial recognition. It must also be linked to other measures taken by the police intended to secure timely response to a specific type of incident,” Cannataci said.

In showing how premature calls made in the Budget speech for a facial recognition CCTV system were, the privacy expert also said that the mere notion needed a law on its own to give planners a proper basis to act. “Before even dreaming of introducing facial-recognition CCTV, you first need an ad hoc law which provides the proper legal basis. Even with a detailed law containing specific safeguards, such a system would normally have to be controlled by the police or an authority set up at law. The implications for privacy are so serious that, for example, the UK has a Commissioner dedicated exclusively to oversight of CCTV surveillance.”

Under the EU’s Police Directive, which came into force on 6 May, any such CCTV tools can only be deployed by police or a responsible public authority authorised at law, with a law that guarantees safeguards before even starting any testing in a public space.

“Even CCTV with lesser capabilities – that is without facial recognition capability – but say, advanced CCTV which can detect the sound of a gunshot or violent language or movement, using a Pan-Tilt and Zoom (PTZ) camera to turn and focus on the origin of that sound; it would need to be properly authorised and have technical safeguards such as the ability to pixelate anything else unconnected to that sound,” Cannataci said.

Indeed, Cannataci poured cold water over supporters of facial recognition CCTV being deployed in problem areas like Paceville’s entertainment area, or Marsa which hosts a large number of foreign communities and asylum seekers. “Even after satisfying the data protection commissioner and Parliament that such a system is necessary, other factors– who will own the system, legal safeguards, technical safeguards such as pixelation – have to be considered. All of them must be taken into account before gaining permissions to test the system, never mind deploying it.”

Controversial Chinese tech

There is also a more serious concern about Huawei’s plans in Malta, a government source critical of the project told MaltaToday.

“Huawei has been successful at developing advanced facial recognition algorithms for Asian faces, which tend to be difficult to recognise in terms of reference points than other faces... they would be keen to test out their algorithm on European faces. The big question is what they would do with the data.”

Chinese technology has made spectacular inroads in both advanced surveillance technology, as well as in marshalling government contracts in Africa. ZTE, a Chinese telecoms giant, provides the infrastructure for the Ethiopian government to monitor its citizens’ communications. CloudWalk Technology, a Guangzhou-based start-up, signed a deal with the Zimbabwean government to provide a mass facial recognition program. The deal enables Zimbabwe, a country with a bleak record on human rights, to replicate parts of the surveillance infrastructure that have made freedoms so limited in China.

By enabling this technology to recognise black faces, CloudWalk could teach its advanced system to filter out racial biases.

American intelligence agencies are suspicious of Chinese technology interests. In February 2018, heads of six agencies testified in the Senate Select Committee on Intelligence against the use of Chinese telecom products such as those of Huawei and ZTE.