Submitted by Sameer Samal, Research Intern.
The Coronavirus pandemic has caused significant loss to human life and property throughout the world causing countries to explore experimental measures with a view to detect and prevent the virus from spreading further in communities. In one such instance, Dr Shashi Tharoor, Lok Sabha Member from Thiruvananthapuram, Kerala utilized his fund under Members of Parliament Local Area Development Scheme (MPLADS) to procure Thermal Imaging Camera with AI Face Detection Technology for his constituency.
The technology uses AI to recognise a human face and detect the body surface temperature using the thermal imaging camera. Artificial Intelligence is trained to specifically identify a human face from other hot objects to avoid false-positive alerts. The thermal imaging camera uses Infrared Radiation (IR) to detect temperature from the forehead and other exposed body parts of individuals. Through these advance technologies, the device can perform fever screening of a large number of people at a time and can identify individuals with higher body temperature even among a crowd. At this juncture, it is essential to list all the technologies used in this device for a clear understanding of the forthcoming analysis. The device uses:
AI-powered facial recognition technology to distinguish a human face from other hot objects; and
Infrared Radiation in thermal imaging camera to screen body temperature.
The technology is true, a major breakthrough in mass contactless thermal screening for detecting symptoms of coronavirus. However, using the technology at airports, railway stations and medical college hospitals requires a robust framework to safeguard individuals’ civil liberties while achieving its objectives. Therefore, it is imperative to analyse the usage of such technologies in public places with two perspectives:
Public policy perspective, and
Civil liberties perspective.
A Public Policy Perspective
The Central Government of India has, under the Disaster Management Act, 2005, imposed a nation-wide lockdown to prevent the virus from spreading. The Act provides for a National Disaster Management Authority that derives its powers to take measures for “the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”, under section 6(2)(i) of the Act. In furtherance of the aforementioned objectives, the Authority has issued directions for the lockdown to both, central and state governments.
The Kerala State Governments has invoked the pre-constitutional, Epidemic Diseases Act, 1897, to effectively enforce advisories. The State Government has issued the Kerala Epidemic Diseases, COVID-19 Regulations, 2020 to endorse surveillance and other preventive measures against the disease. However, neither the State Government nor the State Legislature of Kerala has established any satisfactory legal framework to govern such surveillance measure.
An exemplary framework has been established in Seattle, the U.S. that requires public comment and participation before the introduction of any new surveillance technology in the community. Additionally, the process requires the city to implement ‘Surveillance Impact Reports’ that review serious social implications of such technology on the community. India is often considered as the epitome of a constitutional democratic establishment. Therefore, if the Kerala State Government intends to collect personal data such as facial scans, it should establish a similar framework to govern the collection of such data. A privacy-concerned Electronic Frontier Foundation (EFF) published a statement questioning the accuracy of the technology and its far-reaching surveillance effects after the pandemic ends. Matthew Guariglia, a policy analyst, argues that due to the initial public safety concerns people tend to ignore the long-term civil liberties implications of certain surveillance measures.
A comprehensive and conclusive framework is necessary that formulates the duration and extent of surveillance to ensure the termination of AI-powered facial detection technology for thermal screening at public places.
A Civil Liberties Perspective
Although the Central and State Governments have invoked the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 to endorse the surveillance measures, a framework for its governance has not been formulated. Considering that the right to privacy is a fundamental right under Article 21 of the Constitution of India, control over the collection, dissemination, processing and storage of data is necessary. The Kerala State Government has not clarified certain aspects before introducing thermal screening technology in public places. These aspects are:
Data ownership,
Relationship between data principal and data fiduciary, and
Dissemination and other uses of the collected data.
Indeed, the usage of such advance technology against the pandemic is appreciated but it is imperative to clarify the usage of such data once the pandemic is over because there are a clear potential for law enforcement authorities, health insurance firms and local governments to misuse the data. Without a clear framework governing the collection of such data, the fundamental right to privacy under Article 21 will be nothing more than black ink on a white page.
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