Brazil’s Facial Recognition Ruling May Set Important Precedent for Nationwide Use Global Voices Français

Image courtesy of Laís Martins

Every day, nearly 5 million people use the São Paulo Metro. Each of their faces may have been registered in a facial recognition system that has been in use since early 2020. In decision of March 23, a São Paulo state court ordered the Metro company to stop using the technology.

Metro appealed the ruling, saying its monitoring system “strictly obeys the general data protection law”, but the argument was dismissed by the same court in mid-April.

The decision is seen as a victory for a group of civil society entities who have filed a public civil action to stop this data collection, which they deem unconstitutional and out of step with Brazil’s legal framework on digital civil rights. .

At the beginning of March 2022, this group filed a public civil action against the São Paulo State Metro, demanding that it stop this data collection and pay compensation for collective moral damage of at least 42 million BRL (approximately 8 .5 million USD).

But the group aspires to have a wider impact beyond the São Paulo metro tracks. They are striving to play a role in shaping case law on facial recognition technologies in a country whose legal framework says little or nothing about these systems.

“This decision may have a national impact on what we are currently debating on the application of general data protection law, on a protective legal framework which is still new and in the process of formulating jurisprudence and agreements in the system. justice,” explained Sheila de Carvalho, coordinator of the Legal Reference Center at Article 19 Brazil and South America.

Article 19 is one of the organizations that signed the lawsuit, along with the Public Defenders Office of the State of São Paulo; the Federal Office of Public Defenders; the Brazilian Consumer Defense Institute (Idec); Intervozes, a social communication collective; and CADHu, the collective for the defense of human rights.

Carvalho explained that the main purpose of the lawsuit is to stimulate debate on how to process personal data, the need for consent, the discriminatory impact and social biases of these data collection methods.

“This trial [including the arguments in it] paves the way for us to establish more protective parameters when it comes to the use of personal data,” the lawyer told Global Voices in a video interview.

Over the past few years, members of Congress have proposed bills that attempt to regulate and establish procedures for the implementation of artificial intelligence, particularly in public safety. The Senate, however, has held discussions with experts that it hopes will result in a new, more privacy-friendly bill, to absorb other existing proposals on the subject.

In February 2020, the São Paulo Metro announced that it would implement an “electronic surveillance system using images” for three of the five metro lines. The project has been entrusted to the Engie Ineo Johnson consortium, made up of Irish and French companies, with a planned investment of 58.6 million BRL (approximately 11.5 million USD).

At the time, a coalition of civil society entities – the same ones who filed the public civil complaint – went to court to get more information about the system. They wanted to know how the initiative would align with the principles established by Brazil’s General Data Protection Law (LGPD), approved in 2018 and due to come into force in August 2020.

Two years later, this question has been answered. According to the organizations behind the lawsuit, the system repeatedly violates the LGPD and goes against other legal mechanisms, such as the Federal Constitution, the Children and Adolescents Act and the Code of Rights of Children. consumers.

The lawsuit claims that the São Paulo metro company uses facial recognition technology on passengers and uses their personal data without consent, without transparency required, and does not make information about the data available to users, such as what it will be used for and how it will be treated.

They also point out that the company has not assessed the risk of the program or mitigated the problems inherent in facial recognition technologies, as required by law. Moreover, its facial recognition practices violate fundamental human and consumer rights, which harms all public transport users, especially marginalized social groups, who would be affected by embedded racial biases.

Move against the tide

In the United States, some places are moving to ban facial recognition at the state and municipal levels, while others are increasingly normalizing the use of this technology, Wired reports. This paradox highlights the importance of regulation at the federal level.

The European Parliament calls for a ban on police use of facial recognition technology in public places, private facial recognition databases and predictive policing.

But Brazil seems to be swimming against the tide. The São Paulo metro is not the only public entity to use facial recognition. Across the country, state governments are implementing it in various sectors. According to Instituto Igarapé, an independent Brazilian think tank, in 2019 there were 47 cases of facial recognition implemented in 15 states.

This is particularly problematic in a country where 56.1% of the population identify as black. This is evident in Bahia, where the leftist government of Rui Costa, a Workers’ Party politician, is turning the state into a “facial recognition laboratory”, as reported by The Intercept Brasil.

Although there is little evidence that such a system would be successful for public safety purposes, in July 2021 the government of Bahia decided to expand the program by piloting a new system in the state capital, Salvador.

Worth 18 million BRL (3.56 million USD), the new system is provided by the Spanish company Iecisa in partnership with Huawei. Cameras distributed throughout the city will collect the identity of faces and archive them in a system, grouping together images of the same person. The system, according to Intercept, also uses artificial intelligence to cross-reference the collected images with faces that are in the Secretary of State for Public Safety’s database for wanted persons.

According to civil society actors, Brazil still lacks a legal framework establishing limits and parameters for the use of facial recognition technologies.

“What exists today is the absence of regulation or general guidance, which translates into the tacit authorization of the use of facial recognition systems,” writes Igarapé in a 2020 report. .

In the international community, there is already a more consolidated understanding of this issue, which served as arguments in the trial. The United Nations Commission on Human Rights, for example, recognizes that facial recognition tools can be used to “perpetuate and amplify discrimination,” particularly against women and people of color.

The fact that Brazil does not have a consolidated legal framework, however, is not a free pass for abuses and violations. Civil society groups that have filed a lawsuit against São Paulo Metro argue that data collected from metro stations and trains is illegally marketed.

The hypothesis is justified: in 2021, ViaQuatro, the private company that manages one of São Paulo’s privatized metro lines, was convicted by the São Paulo State Court for using facial recognition without authorization.

At the time, the judge wrote that she was in no doubt that the images of the passengers were being captured without their consent for commercial purposes for the benefit of the company and other third-party companies involved.

“We import technology in a very unconscious way, simply replicating what was applied. And even faulty reproduction, considering that most of these countries have abandoned these technologies. But these countries need to sell this technology, which is extremely expensive, and to use countries with a high rate of inequality,” explained Carvalho.

She adds that Brazil operates in a logic of mass incarceration, of criminalization, without being able to use penal law sparingly for conflicts that really need it.

“We use it as a first resource and not the last. It is therefore more permissive for mechanisms like these, which violate rights, to find a space to flourish within our country.

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