How facial recognition technology puts us in a ‘virtual line-up’

An expert has explained why using facial recognition technology is concerning despite the “legitimate concerns” of crime prevention.

While most Australians support Bunnings using facial recognition technology (FRT) to protect customers and staff, one of the nation’s leading experts in the field has warned it’s far from foolproof.

In a poll conducted by news.com.au, 78 per cent of the almost 11,000 people who voted backed the company’s use of the controversial program as an “important tool”.

It comes after the Privacy Commissioner found Bunnings had breached Australians’ privacy over the course of three years, ruling “just because a technology may be helpful or convenient, does not mean its use is justifiable”.

Former Human Rights Commissioner Edward Santow has explained why the “experimental” technology was unsettling for authorities despite the “legitimate concerns” of issues like crime prevention.

An alleged assault at Midland Bunnings in 2020. Picture: Bunnings

He said the current generation of FRT generally relied on data captured without “rigour” by big tech companies scraping our social media.

“So there’ll be people caught up in that who have never been accused, let alone convicted, of any crime,” Mr Santow said.

“What you’re creating with this sort of facial recognition is a kind of virtual line up and we’re always in it every time we walk into one of those stores.”

Bunnings was this week found to have breached privacy by capturing the faces of “likely hundreds of thousands” of Australians who entered 63 Bunnings stores in Victoria and NSW from November 2018 to November 2021.

It has not used the technology since its trial ended in November 2021.

Bunnings Managing Director Michael Schneider said the company believes it was using FTR lawfully. Picture: AAP Image/Joel Carrett

The hardware giant maintained that using the technology was an important safety measure, and released a compilation of shocking incidents in stores which included clips or armed robbers, staff being physically attacked, and a naked man following an employee.

Managing Director Michael Schneider said the ruling did not “pass the pub test”, adding images were captured and held for 0.00417 seconds – “or less than the blink of an eye”.

“I think any reasonably minded person is going to understand that is not capturing and storing data,” Mr Schneider said.

“Particularly when you look at it through the lens of keeping our team and our customers safe.”

Privacy Commissioner Carly Kind said FRT had “emerged as one of the most ethically challenging” issues in recent years.

She accepted Bunnings had “well-intentioned efforts to address unlawful activity” but found “deploying facial recognition technology was the most intrusive option, disproportionately interfering with the privacy of everyone who entered its stores, not just high-risk individuals”.

Some kinds of facial recognition technology is still considered “experimental”. Picture: iStock

Mr Santow, co-founder of the University of Technology Sydney’s Human Technology Institute, said the privacy commissioner’s ruling was “balanced” in recognising Bunnings’ good intentions and declining to impose any financial penalties.

“But what (Ms Kind) was really saying was that in this specific situation, they weren’t taking strong enough privacy protections,” he said.

On its website Bunnings states how the technology is used with matches to a “potential offender” sending an alert to staff who then manually check the images.

If confirmed, a loss prevention officer would then decide to deploy a security officer to monitor the person, inform store leadership and/or call police.

Bunnings was using the technology between 2018 and 2021. Picture: NewsWire / Andrew Henshaw

Mr Santow said from a safety perspective, the problem for staff confronted by a person armed with a weapon was not whether you could identify them.

“Your problem is whether you can get a police or a security guard or something to protect your staff,” he said.

“I’m very, very sympathetic to any staff member or anybody else who’s affected, but it’s got almost nothing to with facial recognition.”

The human rights lawyer said Australia’s laws surrounding FRT were “pretty vague”, and “don’t set clear rules about when you can and can’t” use it.

He said lists of banned or suspected individuals were usually maintained by companies, not “official” databases created by police or government agencies.

It’s understood Bunnings used sources such as staff reports, CCTV and police advice to compile its database.

This man was captured on camera after entering the Taree store naked last year. Picture: Bunnings

Another issue with this type of facial recognition is that error rates were “significantly higher” for people with dark skin, women, those with physical disabilities and young people.

“So that actually takes in quite a lot of the community, basically anyone who doesn’t look like me. I’m a white, middle aged man,” Mr Santow said.

“It’s pretty accurate for people who look like me, but if you don’t make that description, it’s less accurate, and that means that you’re having the errors cluster, particularly in respect of those sorts of groups where that’s really unfair.”

Former Human Rights Commissioner Edward Santow says there needs to be a balance between privacy and safety. Picture: AAP Image/Joel Carrett

Mr Schneider said using the technology was “all about safety”, and that it was targeting people who were not the kind “you want your family, your kids around at any time”.

“We’ve seen a significant rise in violent and aggressive behaviour towards frontline workers, whether they’re in a Bunnings store, in a fast-food outlet, in a supermarket environment,” he said.

“It’s something that as an industry we’ve been working hard to get legislation changed to raise the awareness of this.

“The types of people we’re talking about here, no one wants to be around. They’re convicted felons, they’re people who have been identified as perpetrating violent crime.”

He said “70 per cent of incidents are caused by the same group of people” and the high volume of customers coming through the doors made it “virtually impossible” to enforce bans.

A staff member was pushed to the ground at Greenacre Bunnings in 2018. Picture: Bunnings

Mr Santow said there may be a place for FRT in addressing crime, and pointed to the example of the European Union which had recently provided guidelines for its use to agencies.

“Our privacy law was passed in the 1980s before the rise of the internet, let alone things like facial recognition technology and it’s dangerously out of date,” he said.

“Obviously, my background is as a human rights lawyer, so I care really deeply about the community, but I actually really care about business as well.

“Because I think they suffer from the law being so out of date because the rules are not as clear as they need to be.”

Consumer group Choice, which brought attention to Bunnings, Kmart and The Good Guys using facial recognition technology in 2022, said this week’s determination was a “landmark decision”.

Originally published as How facial recognition technology puts us in a ‘virtual line-up’