eDiscovery Daily Blog

• June 27, 2018

Air travelers have already become accustomed to standing in the brightly painted footprints at security checkpoints and raising their arms in order to be scanned, but this month in Orlando, a new type of scan is taking place. Last month, Geneva-based tech company SITA installed cameras with facial recognition software at the Orlando International Airport in conjunction with British Airways and U.S. Customs and Border Protection (CBP).

When people step up to be scanned, a photo is taken of their face, it’s sent to CBP, who then matches the photo to the person booked on the manifest, and if it matches, the gates open and the passenger can board, all in a matter of seconds. If there isn’t a match, the passport is scanned manually by the gate agent.

The hope is to bring efficiency to the process of making sure people are who they say they are. The TSA is also testing similar technology for security check-ins, with Steve Karoly, acting assistant administrator at TSA, says it’s a “game changer.”

But according to a report released by the Center on Privacy and Technology at Georgetown Law School, the system is full of technical and legal issues, with a rejection rate of 4 percent. One issue the report cites is bias, with higher rates of false rejections occurring because of race and gender. Another report, conducted by the CAPA-Centre for Aviation, said the face-recognition software isn’t good at “identifying ethnic minorities when most of the subjects used in training the technology are from the majority group.”

Privacy is another concern as the Department of Homeland Security doesn’t have any rules for protecting Americans’ privacy and use of this data, but CBP says it deletes the photos within 14 days. It’s still unclear how GDPR compliance comes into play, especially with travelers who are EU citizens. But so far, most people who have used the technology aren’t concerned with privacy as long as it speeds up the boarding process.

This is still very much in the testing phase, although President Trump signed an executive order last year to increase the use of biometric tracking for airport security. As this type of technology becomes more and more widespread with uses outside of airport security, it’s also inevitable that litigation surrounding this technology with also rise.

In China, police are using AI-powered CCTV cameras to enforce jaywalking laws. If the cameras catch you outside of the crosswalk, the facial recognition software links with cellphone systems, and a text message is sent to your phone letting you know you’ve been fined.

But even if the technology isn’t the primary reason for the lawsuit, the electronically stored information created by scanners could potentially become relevant to discovery. This has certainly happened with other relatively new data sources with a rise of text messages, social media, and data from the Internet of Things being preserved as evidence more and more in both the civil and criminal courts.

It will be interesting to see how the use of this technology grows, but it’s also a reminder to organizations, who may be contemplating facial recognition software for various applications, of the need to consider the potential implications of how biometric data could be preserved and collected should litigation arise.

So, what do you think?  How do you see the rise of facial recognition technology affecting your eDiscovery practices and policies in the future?  Please share any comments you might have or if you’d like to know more about a particular topic.

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