January 19, 2024

On January 17, 2024, the International Justice Clinic submitted comments on Ireland’s General Scheme of the Garda Síochána (Recording Devices) (Amendment) Bill 2023 to the Joint Committee on Justice at the Houses of the Oireachtas (Irish Parliament). The submission was made in response to an invitation received by Professor David Kaye, the director of the Clinic.

The Bill grants the Garda Síochána (Irish police) the power to use facial recognition technology on any past images or video that they have legally accessed for (1) crime investigation and prevention and (2) national security, so long as it is not used on live feeds. This facial recognition technology is a powerful tool that automatically extracts unique identifiers from individuals’ faces recorded by data and matches them with identifiers on a watch list.

Our comment highlighted that a “post” or retrospective use of facial recognition technology equally causes a formidable impact on fundamental human rights as “live” identification. When facial recognition technology is used on data recorded in a publicly accessible place, it causes people to experience fear that they might be identified in the future. This leads to a chilling effect—especially in the case of the indefinite retention and use of images or video for facial identification as the Bill so intends—on people’s ability to freely participate in a public protest or move in a publicly accessible place.

The freedom of peaceful protest, expression, and movement are guaranteed as fundamental human rights under the International Covenant of Civil and Political Rights (ICCPR) and are also fundamental to a democratic society. Echoing other experts and civil society groups, we thus believe that international human rights law requires subjecting the facial identification of people in a publicly accessible place to the most stringent safeguards or may even warrant the prohibition of such use.

Under ICCPR, any restriction of those rights must be (i) prescribed by law and (ii) necessary to achieve (iii) a legitimate aim (three-part test). To make the Bill meet the three-part test, we made the following recommendation in our comment, referring to human rights jurisprudence and instruments:

Prohibit the use of facial recognition tools on data recorded in a publicly accessible place;
- Otherwise, (i) establish a defined time frame between the moment images or video are captured and the time facial identification can be employed; and (ii) subject the use of facial recognition on such data to judicial pre-approval.
Specify the exact data sources that can be utilized by the police for facial identification to enable people to self-regulate their conduct. The data sources should incorporate examples such as passport databases, driver license records, and past police-recorded images and video of a publicly accessible place, if such use is anticipated;
Strengthen the necessity and proportionality analysis;
Implement robust safeguards to mitigate the risk of abuse. For example:
- Notify individuals affected by the use of facial recognition; and
- Deny the admissibility of evidence obtained through facial recognition that did not follow the procedures outlined in the Bill and other relevant rules; and
- Publicly disclose oversight reports.

The Bill will be further discussed at the Houses of the Oireachtas. We hope that the members of the Houses will carefully analyze the Bill’s human rights impact and compliance with the ICCPR.

You can find our submission below.