back to article Laws on police facial recognition aren't tough enough, UK data watchdog barrister tells Court of Appeal

A top judge told a barrister for the UK Information Commissioner's Office (ICO) today that his legal arguments against police facial-recognition technology face "a great difficulty" as he wondered whether they were even relevant to the case. Sir Terence Etherton, the Master of the Rolls and president of the Court of Appeal, …

  1. DMcDonnell

    Facy dress

    Do these judges still dress up in powdered wigs?

    1. Peter2 Silver badge

      Re: Facy dress

      Did you mean "do they still have a dress code that hasn't been updated for over quarter of a millennia and not updating the dress code became a tradition itself"?

      The civil courts don't have a dress code.

      The criminal courts still have their original dress code.

      The High Court might do depending on how they feel.

      The Supreme Court which has been around for less time than much of our equipment doesn't.

  2. DMcDonnell

    Bring in the skating Vicar

    Bring in the skating Vicar

  3. mego

    There's several issues with sitting judges today

    The biggest being that they tend to be "tenured" or more impolitely, old and not current with technology. If a judge cannot understand the basic premise of how technology functions, or indeed how it has come to be, there's a problem with them making any judgement whatsoever on the technology. Most of these people claim to have an "iPhone Galaxy Lumia", or that their laptop is an "iPod Latitude Pro". Most don't understand the difference between Samsung and Apple even when devices have the names on the face of the device.

    The legal language of the law does not capture how technology works either, especially when it comes to risks inherent in any sort of big brotherly system

    1. Anonymous Coward
      Anonymous Coward

      Re: There's several issues with sitting judges today

      "Would you want you wife or servants ...

      ... to use anything other than publically visible semaphore flags?"

      1. Doctor Syntax Silver badge

        Re: There's several issues with sitting judges today

        "Would you want you wife or servants"

        I sometimes wonder whether that was a barrister who realised he was on the wrong side of history deliberately sinking his case whilst plausibly appearing to argue it.

    2. Julian Bradfield

      Re: There's several issues with sitting judges today

      Senior judges are almost always very clever people. They don't need to know *how* technology functions, because the law is unlikely to have any concern with that, except in the commercial and technology courts, where specialist judges are in charge. At the general law level, such as human rights law, judges need to know *what* its functions are, and what its functions can be extended to be. This does not require specialist knowledge of how a neural net works.

      1. batfink Silver badge

        Re: There's several issues with sitting judges today

        Agreed. As far as I can make out here, the judge seems to be asking whether the current legal framework applies, which is kinda irrelevant to the technology piece.

        1. Peter2 Silver badge

          Re: There's several issues with sitting judges today

          Nope, not quite.

          Despite the barrister's efforts, the Master of the Rolls remained "in some confusion" about the legal submissions as he told the barrister: "Your Item 2 is not part of this appeal.

          When you appeal, you get permission to appeal on the basis of point A not being considered.

          The chap bringing the appeal is bringing up a point B, and he's being told by the judge that he can appeal point A, but point B is an irrelevance and is not up for discussion because it's been settled by another court.

          In computer terms, the law is a program. The Judge is the processor tasked with deciding if the IF statements match, and then following the THEN login to the punishment part. In this case, the IF statement conditions don't match.

    3. Doctor Syntax Silver badge

      Re: There's several issues with sitting judges today

      Most of these people claim to have an "iPhone Galaxy Lumia", or that their laptop is an "iPod Latitude Pro".

      Can you prove those claims?

    4. Doctor Syntax Silver badge

      Re: There's several issues with sitting judges today

      "The legal language of the law does not capture how technology works either"

      If you try to capture how technology works in legal terms your laws become outdated very quickly.

      If you applied such a concept to cars you might have to have separate legislation for causing death by dangerous driving for petrol, LPG and diesel ICEs, whether turbocharged or not, straight EVs, hybrid EVs and plug-in hybrids with Parliament being asked to find additional time to legislate on hydrogen powered vehicles.

      Sensibly, that's not how it works. Legislation simply says what's legal and what isn't irrespective of the means by which an act is carried out. One of the functions of judges is to apply that in a changing world. Legislation changes only as new stuff makes new things possible or, as with the various DPAs, experience dictates that changes are necessary.

    5. ChrisElvidge

      Re: There's several issues with sitting judges today

      It's perhaps not that they don't understand, they want the definitions written into the court records so no-one can say later "I didn't mean it that way."

      1. Intractable Potsherd Silver badge

        Re: There's several issues with sitting judges today

        That's exactly it. There is something called "judicial knowledge" which is a (very) short things that can be accepted without definition. Back in the 1960s a judge got ridiculed by the press for asking counsel "Who are 'The Beatles'*?" after an undefined reference. The judge wasn't personally unaware of the group, but he needed the reference defining for the court reports.

        * or maybe the Rolling Stones - I can't remember exactly.

        1. Peter2 Silver badge

          Re: There's several issues with sitting judges today

          A point which historians are (or should be) quite grateful for.

          Have you ever read the notes of a court case several hundred years ago? If not, then should you ever have cause to do any amateur history research then you'll find the court records perfectly comprehensible because such "common knowledge" is defined within the case so even if you don't know things that were common knowledge at the time of the trial the documents still make sense hundreds of years later.

          1. Intractable Potsherd Silver badge

            Re: There's several issues with sitting judges today

            I left that bit out, Peter2. Senior judges are aware that they are talking to the future, and that Court Rolls are invaluable historical documents. As you say, past cases are a real insight into lived history - I love them!

          2. Doctor Syntax Silver badge

            Re: There's several issues with sitting judges today

            Sometimes I wish it happened like that with manorial rolls. Somebody says something in the English of the day. The roll is written up in Latin. The editor translates it back into modern English for publication but what was originally meant. I'm sure vill didn't always mean the same thing in different circumstances but what did it mean when it didn't mean "township"?

  4. macjules Silver badge

    The Master of the Rolls pushed his glasses up his nose

    Oh dear, a clear rebuke, Poor barista (barrister as was).

  5. Fursty Ferret

    Not surprised

    I was called as a witness in a relatively technical case where it was obvious to me that the judge didn't understand the complexities.

    I'm sure that this is commonplace and it left me deeply frustrated along with a very sour view of our legal system.

    1. Peter2 Silver badge

      Re: Not surprised

      The Judge doesn't need to understand the complexities. The Judge is not there to understand complexities or decide if something is "fair".

      The Judge is there to look at a set of laws that say "IF", "ELSE" and parse those rules.

      The prosecution makes an argument that the IF statement should apply, the defense makes an argument that it should not apply.

      Expert witnesses are called in to establish things so that people don't have to understand a specialist subject area that requires 20 years of training & experience.

      Witnesses are merely there to establish that something did, or did not happen.

      1. Fursty Ferret

        Re: Not surprised

        Which is fine if it's the barristers asking the yes or no questions. But when you have the judge asking a string of questions of which the answer is "sometimes", "possibly", "maybe", then drawing conclusions based on a misunderstanding of the facts, you have a failure of the system.

        You might like it to be as straightforward as you describe but it very rarely goes that way.

    2. Anonymous Coward
      Anonymous Coward

      Re: Not surprised

      I was called as an "expert witness" (you get £750) to an appeal at the High Court. The judge wanted to know what Skype was and why the appellants could not have used a telephone. The simplest explanation I could come up with was that this was a form of telephone but where you use a headset with your computer instead of one plugged into your telephone. I still do not think the judge quite understood why they could not use a phone.

      1. Cynic_999 Silver badge

        Re: Not surprised

        If the judge still did not understand the relative advantages (and disadvantages) of using Skype as compared with using a phone, then it was because you failed to explain it to him/her. That was your *job* as an expert witness. There was no need to go into any technicalities - the relative pros and cons are easily explainable without any reference to the technical reasons behind them.

      2. The First Dave Silver badge

        Re: Not surprised

        From that description, neither can I. Why wasn't a 'proper' phone call possible/available/relevant?

        1. Cynic_999 Silver badge

          Re: Not surprised

          It is not the job pf the expert witness to explain the actions of anyone else, but only to present facts such as the relative merits of alternate actions, and perhaps whether a witness's given explanation is or is not plausible (if asked that specific question).

      3. Brewster's Angle Grinder Silver badge

        Re: Not surprised

        To be honest, you'll have to explain to me why a situation demanded Skype. Was it a video call where they were showing images? Did the recipient only have a laptop? What were the specifics that meant carrier pigeons couldn't be substitute for Skype?

  6. John Jennings Bronze badge

    you would be surprised...

    ...How much they do understand the technology.

    It is easy to slam them for being older - but they are generally sharp as nails.

    Their judgement will be based upon how the law is written and how the technology interfaces with that- not the technology its self. It is the barristers job to make those arguments cogent to anyone.

    Also, note that one of the panel is the head honcho of the investigatory powers tribunal - this is real secret squirrel stuff - and it will be a challenge to affect the spooks interest in this stuff...

    1. rg287 Silver badge

      Re: you would be surprised...

      I recall reading a Cory Doctorow story some time back. It wasn't terribly good, but one scene did stick with me.

      Set in the near future the protagonist ends up in court and after being queried on a point the judge replies "I'm not a complete luddite you know - I used to play CounterStrike for England!".

      It was an entertaining observation that whilst we like to view judges as old and fusty, the generation of young professionals who were ~20-25 when Half Life came out in 1998(!) are now in their mid-40s and starting to fill into roles on the Bench. As you say, they understand enough to ask the right questions as the technology relates to the law.

  7. Intractable Potsherd Silver badge

    I'm surprised that Singh LJ is sitting on this bench. As President if the Investigatory Powers Commission, bias can be quite easily inferred, leading to an easy appeal - see Lord Hoffman and Amnesty International.

    1. Jimmy2Cows Silver badge
      Facepalm

      Yes that seems like an obvious conflict of interest. That judge should immediately recuse themself from these proceedings, or, better still, should not have been brought into these proceedings in the first place.

      1. Intractable Potsherd Silver badge

        Something stinks a bit...

  8. mark l 2 Silver badge

    COVID19 and the wearing of face masks have made the police use of facial recognition pretty useless anyway. The accuracy rate was poor when it could see the full persons face, now when it can only see a half of it, surely that will reduce the already poor hit rate to 50% less. Which might as just be flipping a coin to decide if someone is wanted or not.

    1. Ben Tasker Silver badge

      > COVID19 and the wearing of face masks have made the police use of facial recognition pretty useless anyway.

      *If* that's the case, then it's only because the police have bought a less advanced product.

      China's FR has been able to cope happily with face masks for a very long time now, it's certainly possible to do.

      Aside from some very clever t-shirt printing - https://www.wired.co.uk/article/facial-recognition-t-shirt-block - the only way to really avoid it is to completely cover your head (and then you'll stand out if you're the only one doing it, and other techniques like gait analysis would probably be rolled out if it became widespread)

      On the other hand, the accuracy rate the police achieved with theirs probably tells you quite a lot about the quality of the product they're using, so it may well flag false positives based on what colour of mask you're wearing...

      1. Jimmy2Cows Silver badge

        China's FR has been able to cope happily with face masks

        Apparently.

        I'm not convinced on the true accuracy of their tech, as we only have the word of an authoritian regime with no independent assessment.

        The number of people with similar eyes/nose/forehead patterns must be significantly higher than the number of people similar eyes/nose/forehead/mouth/chin/cheeks patterns. I see scope for a huge number of false positives and false negatives when everyone wears a mask. There are simply fewer variables from which to establish a positive identification.

        1. Ben Tasker Silver badge

          Re: China's FR has been able to cope happily with face masks

          I agree, you're reducing the number of identifying factors.

          The important question, though, is the reduction sufficient to be effective? I.e. does the number of false outcomes increase significantly enough that you can't simply increase manpower when doing manual reviews and the like (i.e. when pulling out someone's locations)?

          Given we're talking about a state's resources - and in this case a state that may not mind too much if it's occasionally incorrect, I don't _think_ the drop in accuracy is going to be sufficient.

          There are plenty of other reasons we should all wear masks in public, but dodging FR tech likely isn't one - and as noted, if it did become widespread, would probably not remain effective for very long at all.

      2. Cynic_999 Silver badge

        No, China's facial recognition system is not significantly more accurate than anyone else's. They just have better propaganda promoting its use. It's a bit like the lie detector, which "works" only because the subect being tested believes that it works. The same is true of voodoo.

        1. Ben Tasker Silver badge

          I don't see where I said it was more accurate than anyone elses, you seem to have inferred that for itself.

          What I said was that it's able to cope with facemasks.

          In fact, the only time I implied theirs was better than others was when I pointed out that it's quite possible that our lot underpaid and bought an inferior product. That's not nearly the same thing as China being at the height of technology.

          > They just have better propaganda promoting its use. It's a bit like the lie detector, which "works" only because the subect being tested believes that it works.

          Possibly. Although the number of people being picked up despite wearing masks would tend to disagree with it being purely propanda. Of course, it may be that it wasn't FR which led to those arrests, and it's instead used as cover for an on-the-ground network.

          I tend to think the false positive rate *will* increase with mask usage, but probably not so much so it can't be addressed with a bit of extra manpower put into checking the matches

          1. Cynic_999 Silver badge

            "

            Although the number of people being picked up despite wearing masks would tend to disagree with it being purely propanda.

            "

            What are the figures for showing the number of false positives and negatives? The number of people being picked up is no criteria if the majority have turned out to be innocent. Also the context would be good to know. Computer recognition works well for tracking the movements of someone over a short time period if they do not change their appearance. Identifying a person in a crowd based on an old mug-shot is a different thing altogether.

            1. John Brown (no body) Silver badge

              "The number of people being picked up is no criteria if the majority have turned out to be innocent."

              Everyone is guilty of something :-)

              On a more serious note, I can see most of the world, especially the western world, looking for the silver bullet, ie a system which spits the name and details of the subject. In China, I could easily imagine that there are entire "call centres" full of people looking at the selected image and many, many likely matches spat out by the system and using the Mk I eyeball for the final step in the process. A process that here in the west would be seen as prohibitively expensive so government and law enforcement will happily accept the poor success rate and pass the costs onto the legal system to sort out. Rather like the US patent system, now that I think about it :-)

          2. Intractable Potsherd Silver badge

            @Ben: "... extra manpower put into checking the matches"

            Are you serious, or did you miss a <sarc> tag?

          3. Eclectic Man

            Chinese propaganda?

            > "Possibly. Although the number of people being picked up despite wearing masks would tend to disagree with it being purely propanda. Of course, it may be that it wasn't FR which led to those arrests, and it's instead used as cover for an on-the-ground network."

            Or it could just be that an oppressive, totalitarian regime would never admit to arresting innocent people by accident. Just remember that Dr Li Wenliang who raised the alarm about the SARS-Cov-19 was forced to apologise for spreading rumours and withdraw his comments, before he died of it. Only the undeniable epidemic in Wuhan, the thousands dead and the spread ensured that the Communist Party higher-up had to admit he was right. Even then they 'found' a doctor who raised the alert earlier than Dr Li, and was not forced to recant, according to their spokespeople.

            1. David 132 Silver badge
              Big Brother

              Re: Chinese propaganda?

              Exactly. It’s China we’re talking about here, where as far as the CCP and State apparatus are concerned, everyone is guilty of *something*, even if it’s only the conveniently-vague “subversion”. Ergo the false positive rate of their system will be 0%, and anyone who suggests otherwise is in league with foreign agencies.

      3. Doctor Syntax Silver badge

        I'd have thought that T-shirt would only be effective against the sorts of systems it was tested against. A more effective way of fooling facial recognition systems would be a picture of someone else's face.

    2. Spanners Silver badge
      Big Brother

      @mark l 2

      I'm afraid that an unacceptable number of people will be content as they will still be able to tell the ethnicity of the subject.

      1. Cynic_999 Silver badge

        Re: @mark l 2

        Yes. It is extremely easy to police a population when you believe that all the criminals are colour-coded.

        1. Nick Ryan Silver badge

          Re: @mark l 2

          Yes. It is extremely easy to police a population when you believe that all the criminals are colour-coded.
          Or have, for example, an Irish accent.

          Unfortunately it's true in many societies that distinguishable minorities are over-represented in crime statistics. However it's important to understand that it could be the case where this is true because these minorities are being stopped and checked for crimes more often compared to the wider population, which will reinforce the generalisation and stereotyping and feed back into itself. Alternatively it could be correct that these minorities are accurately over-represented in crime statistics at which point it's much more important to understand why and to do something about this. It's not that certain minorities are more likely to commit crimes, it's that people who are in crap situations are more likely to commit crimes. Poor and have no food to feed your family? What do you do when there is no societal safety net, or what there is/was is being steadily eroded by the "ruling classes", do you watch your family starve and die or do you do whatever the hell you can to survive?

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