M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on�� on May 18, 2022.

On May 2, 2022, Canada’s privacy regulatory authorities (the Regulators) issued a����calling for a legal framework that clearly establishes the acceptable circumstances for police to use facial recognition technology (FR).

Police agencies greatly benefit from FR, because it is a useful resource for solving crimes, locating missing persons, and supporting national security objectives. However, the Regulators noted that FR involves the collection and processing of highly sensitive biometric information, which raises a series of privacy and human rights concerns when it is applied on a large scale. Widespread adoption of the technology would enable police agencies to covertly identify and surveil individuals and this may impair Canadians’ privacy right to participate in the world without being regularly identified, tracked, and monitored.

The Regulators called for Canadian legislators to implement a legal framework that outlines the boundaries associated with FR. Although Canada’s current principle-based privacy laws are adaptable to evolving technologies, the Regulators took the position that they are too high-level to address the specific risks associated with police use of FR. They argued that the current legal framework leaves much discretion to police agencies, which creates the possibility for serious harms to an individual’s privacy and other fundamental rights.��

In the joint statement, the Regulators suggested that a new legal framework should be implemented by legislators that includes the following:

• Defined Purpose and Prohibited Uses:��A clearly defined purpose for police agencies to use FR and a list of prohibited uses, i.e. “no-go zones”.
• Necessity and Proportionality:��Overarching requirements for the use of FR to be necessary and proportionate for a given objective.
• Independent Oversight:��Empowering an independent, external public body to oversee police use of FR, including requirements for police agencies to obtain authorization to launch an initiative.
• Mitigate Privacy Risks:��Privacy control measures that mitigate individuals’ risks, including controls to ensure the accuracy of information and appropriately limit data retention for police databanks.

Together with their joint statement, the Regulators released the final version of their joint privacy ��on FR use by police agencies that clarifies the agencies’ obligations under current laws. The guidance and joint statement are the product of a public consultation launched in June 2021, in which a large majority of stakeholders agreed that new legislation is required to govern police use of FR going forward.

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Brandon Pierre is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Facial recognition software company muddies the waters again, challenging orders from privacy authorities in British Columbia and testing current Canadian privacy law. In February 2021, the Privacy Commissioner of Canada (“the Commissioner”) released a on , concluding the company engaged in the unlawful collection, use, and disclosure of personal information through its facial recognition software. The Commissioner ordered Clearview AI to delete all data related to Canadians. While the Commissioner does not have the legislative authority to enforce this order, each province may generate privacy legislation to bind certain actors to its provisions.

Legal action in British Columbia

On December 14th, 2021, the Office of the Information and Privacy Commissioner for British Columbia issued a binding order to comply with the Commissioner’s 2021 recommendations (see ). The order cites sections of the Personal Information Protection Act about the provision of consent (ss. 6,7, 8) and limitations on the collection (s. 11), use (s. 14), and disclosure (s. 17) of personal information. This order serves as the basis of Clearview AI’s petition to the courts of British Colombia. According to the , Clearview AI petitioned the Supreme Court of British Columbia to declare the unreasonableness of the order. Clearview AI has previously defended its position that the biometric data it leverages assists law enforcement agencies around the world. Surprisingly, a discloses that many Canadian law enforcement agencies used Clearview AI’s facial recognition technology - including the , and the . Read more on the ethical implications of law enforcement’s use of this technology in Nikita Munjal’s article, .

Why Clearview AI matters In the wake of ’s swift and certain death on the order paper, the Clearview problem underscores the need for provincial legislation in the absence of clear federal directives in regulating privacy and accountability for the processing of personal information. Although Clearview AI and its supporters highlight the technology’s benefits, others argue that these benefits are insignificant when the general means by which it derives its technology clearly violates Canadians’ consent and privacy.

Privacy

Canadians are not the only people affected. Australia, Italy, France, and the United Kingdom have issued similar notices, each ordering the company to stop collecting, using, and disclosing biometric data and images from their residents. The self-described “World’s Largest Facial Network” boasts some 10 billion facial images sourced from public websites, news outlets, and social media.

Clearview AI matters because the Supreme Court of British Colombia’s decision can provide a roadmap for Canadian legislators to tackle urgent privacy violations.

Accountability

Among other legal defenses of its use and sourcing of the images that images, Clearview asserts that because these images are publicly available, they are not subject to copyright laws. Privacy considerations aside, this assertion has garnered the attention of prominent actors including Google, Facebook, Twitter, and LinkedIn. Clearview AI sources many, if not most, of their images from users of these services without the authorization of the companies that provide them. The technology companies contend that anything posted using their service is their protected intellectual property.

Conclusion

The Clearview problem exemplifies the multi-faceted issues of ownership, privacy, and accountability that confront legislators when drafting laws in the era of disruptive technologies such as facial recognition. To complicate matters further, rapidly developing technologies have the potential to circumvent the bounds of the laws before legislators can adequately address them.

There are muddy ethical and legal waters ahead for Clearview AI. The company abandoned all operations in Canada during the Commissioner’s investigation. Clearview AI retains images and biometric data on the likeness of thousands of Canadians among its hoard of billions of facial images.

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Shannon Flynn is a Guest Writer and the Managing Editor of Rehack Magazine

Although facial recognition may have begun as a useful tool for the masses, as with many things, it has become something that can be used against them. When paired with artificial intelligence, facial recognition software can sort through millions of photos to identify a single face or even a fragment of one.

The problem lies in the sourcing of these photos. Why is AI-driven facial recognition problematic, and what regulations and restrictions are in place in Canada to prevent its abuse?

The Problem With Clearview

Clearview is probably one of the best-known facial recognition programs in the world. Its AI is designed to detect and prevent crimes. By itself, this doesn’t sound like a bad thing. Ideally, AI programs can sort through many times the data a human worker could manage, finding collections and identifying people easily even with partial images to work with.

The problem does not lie in the algorithm itself, but rather in where it sources the images it sorts through. Clearview’s AI crawls the internet and can access, download, and store any image uploaded to social media. That means Clearview considers anything posted on Facebook, Twitter, Instagram, or other sites to be fair game. The company has also been accused of using to train the AI’s algorithm.

Many social media companies, including Google, Facebook, and Twitter, have of utilizing user images without authorization. It is important to note that this isn’t user authorization, but rather authorization of the social media program. Instagram’s terms of service include a to use anything individuals post on their site — but that doesn’t allow AI programs like Clearview to swoop in and take what they need.

Even under the best circumstances, allowing a program like Clearview to sort through social media imagery — even in public posts — could be considered a violation of privacy. The average user should not have to worry that corporations or government entities are watching everything they post online. Indeed, there is an in favor of stronger consumer protections where data gathering is concerned.

Regulations and Restrictions

In June 2021, the Office of the Privacy Commissioner of Canada (OPC) submitted a special report to Parliament about the Royal Canadian Mounted Police (RCMP) and their use of facial recognition technology. Again, Clearview AI was in the crosshairs for improper use of private user data scraped from various social media sites across the internet.

Billions of people, both in Canada and around the world, have suddenly found themselves in a “,” as the report states, without even the courtesy of due process.

As a result of this report, new policy guidelines have been drafted that clarify when and where the use of facial recognition technologies is appropriate. These guidelines focus on four key points: accuracy, data minimization, accountability, and transparency. Accuracy is one of the biggest concerns because AI-powered facial recognition technologies tend to be a lot less accurate than human detectives completing the same task. Law enforcement officials shouldn’t take any matches discovered by facial recognition at face value, and should always double-check the results before making an arrest or pursuing legal action.

Data minimization ensures large swaths of the population are not included in a search. It also helps reduce the impact of a data breach if one happens, which grows more common every year. Accountability is essential so everyone involved knows what data is being collected and how. This key component also includes information security.

Finally, transparency helps keep innocent people out of digital lineups simply for sharing a certain demographic with an assailant.

Looking Toward the Future

It may seem as if an individual’s information is fair game because it’s available on a public post, but this is not the case. Facial recognition technologies can be valuable for preventing and detecting crime, but only if those in power are not allowed to abuse it.

The new policy guidelines being embraced in Canada are just one piece of the puzzle. Every government that utilizes facial recognition should follow suit by embracing key tactics like accountability, transparency, accuracy, and data minimization to ensure the technologies are used properly.

The a fine line between tyranny and law enforcement should not be crossed, regardless of how easily one could click a button and find the “bad guy.”

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Shannon Flynn is a Guest Writer and the Managing Editor of Rehack Magazine.

It is easy to overlook the relationship between physical security and intellectual property (IP). Just as video surveillance can help deter or provide evidence of people stealing physical property, it can do the same for IP. Cameras let companies monitor employee actions, protect data centres, or watch printers that may process sensitive documents.

Cameras can be a helpful tool, but they also raise a few concerns about liability. With that in mind, here are five facts about liability for video surveillance that you should know.

1. Video liability laws vary widely

Like many legal restrictions, video liability laws vary widely based on jurisdiction. For example, the state of Georgia permits video surveillance in both private and public settings so long as the cameras are in plain sight. In contrast, Canada requires you for covert surveillance to record in private places without people knowing.

If you are considering installing cameras in any setting outside your home, you should look at your specific area’s laws. What may be legal in one place could trigger serious legal issues in another. Knowing what you can and cannot do can help protect your IP while staying within your legal rights.

2. Installing cameras can limit liability

While installing a video surveillance system may appear to increase your liability, the opposite can be true in some cases. People in some situations, such as property owners leasing to tenants, may to provide some amount of protection. Installing cameras may arguably demonstrate that you are taking steps to do so, which may limit your liability if something happens.

Similarly, someone in charge of protecting a company’s IP may have a legal obligation to take reasonable steps towards that goal. It is worth noting that there is little precedent to demonstrate what precisely that duty entails outside of the person’s contract.

Some affected people may feel that installing cameras alone is likely not enough to remove all liability should a privacy breach occur. However, installing a video surveillance system can be a valuable part of a larger strategy and, along with other protections like data encryption and network access controls, may help limit liability in these situations.

3. Video with audio carries more liability

Not all forms of video surveillance carry equal weight in the eyes of the law. Most notably, cameras that capture audio as well as video are subject to stricter regulations since they must comply with audio surveillance laws as well. Employers , like protecting company IP, to install these systems. Depending on local laws, some amount of consent may be required as well. For example, in Canada, without the consent of those speaking or legal authority, like a warrant. You may be able to get permission to record audio, but you may have to appeal to local authorities.

Given these varying regulations, you may want to avoid video with audio, but if you think it’s necessary, be sure to check local laws first.

4. Recording without foreknowledge is sometimes permissible

It may seem like a given that you must let people know that you are recording them. While this seems like a reasonable expectation, some laws allow people in some contexts to set up video surveillance without anyone knowing.

For example, in Pennsylvania, people can without your knowledge. The same is true in many places, as public areas do not carry the same expectation of privacy as private property. Protecting your IP by setting up video cameras in the workplace is different. Organizations in Ontario that they are under video surveillance.

Laws aside, it may be best to let people know if you are installing cameras in an area out of respect for their privacy. If you are in public, regulations may be a bit more open, but remember that what constitutes a private place can vary based on jurisdiction.

5. Fake cameras can still create liability

The mere presence of cameras can deter crime since they make people feel like they are being watched, hence, discouraging them from taking suspicious actions. Given the potential for deterrence, some people may consider installing fake cameras to dissuade IP theft while avoiding surveillance-related liability. People may not realize that fake cameras may still create liability.

The presence of cameras, even if fake, can foster a sense of security, and if those feelings are false, it can create liability. People have for installing fake cameras when criminal actions took place. If you’re debating between fake and real cameras, remember that some amount of liability could arise either way.

Understand your liability before implementing video surveillance

Video surveillance can help secure your IP, but it can also establish some legal liabilities. Considering these consequences, make sure to inform yourself of your local laws before installing any cameras. Understanding relevant laws in your jurisdiction can help protect you against legal action.

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Ali Mesbahian is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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The Dystopian State of Surveillance in the Workplace

The ongoing pandemic has shaken up of the world of work. With the emergence of COVID-19, distinctions between on-site and remote workers became intuitive and reliance on technology for attuning the workforce to the situation of a pervasive contagion rapidly increased. This has naturally caused worries about the future of labour relations, the , and automation.

While remote work has its , caution must be exercised against hastily treating the situation as liberating. After all, the flexibility and cost-effectiveness associated with remote work did not result from collective bargaining by employees and labour unions, but emerged from a public-health necessity. As Antonio Aloisi and Valerio De Stefano , the result is an asymmetrical distribution of the benefits of digitalization—as evidenced by the technology (more than 58 percent since the beginning of the pandemic). In many firms, working at home has made bare an as workers are often called to download apps that track how long they are away from the computer (), record and send their web-history to their employers (), and take screenshots of their desktops ().

Against Technological Determinism

On the other hand, it is important to dispel any conception of technology that grants it an agency of its own, as if acting as an imposing itself on societal relations, labour markets, and daily tasks. For instance, AI is often said to inevitably replace many jobs performed by humans; self-checkout machines in grocery stores are a common example. While there is some truth to this statement, emphasizing inevitability tends to mask the bigger picture that human decisions—more precisely, those of the tech elite, policy makers, security and military officials, and employers – fundamentally shape technological progress.

As Aloisi and De Stefano emphasize, .” In other words, it matters whether technology and machinery are used and developed for the purposes of extracting profit and cutting down costs, or for the purposes of building trust in work relations and increasing workers’ . For instance, ” may provide the conditions for establishing a four-day workweek, according to a 2018 study by the Social Market Foundation.

Moreover, automation often increases demand for complementary skills. For instance, A human-centered research mandate and policy objective would thereby identify the required complimentary skills borne out of the automation process in order to create jobs and increase wages. As Frank Pasquale, professor at Brooklyn Law School, rhetorically asks: This invokes broader questions, often relegated to the sidelines, . The issue is, of course, political at heart; a worker-affirming answer to such questions depends on structural changes that place workers as powerful stakeholders in the decision-making process that underlies the direction of technological advancement.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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In August, Apple made headlines by . These new features are purported to expand protections for children through modified communication tools, on-device algorithm learning within , , and , and Search . Although protecting children as a vulnerable group should be of utmost importance to all, many security experts find some of these proposed changes troubling as they may undermine the company’s longstanding reputation in privacy preservation and enable future security .

Over the years, Apple has cultivated a strong reputation as a One of their core values and s is that After all, their security and privacy designs are so powerful that Apple allegedly can’t access encrypted user data—. In 2015, Apple CEO Tim Cook that while issues such as national security are important, Apple would not implement any technology which malicious actors could misuse as a backdoor to encrypted user data. Now, in 2021, Apple’s ironclad encrypted system has one exception.

As one of the changes, Apple intends to introduce photo-scanning technology for all users to identify any Child Sexual Abuse Material (CSAM). This well-intentioned technology is already widely used online to identify known explicit materials, including terrorist propaganda and other violent content. Some consumers worry that all their private images will be scanned in search of illegal content; however, Apple is not proposing that. The technology scans for the “” of a file and matches it to a known hash. If a certain threshold of known CSAM is found, barring false positives, then law enforcement is contacted. Strangely enough, Apple has noted that users can opt to disable photo uploads to iCloud, expressing that CSAM is only identified within their servers, and not on users’ devices. Some experts interpret this as

Some security experts expressed strong s over modified communication tools for children. Apple alleges that device software will detect any explicit content (not hashes) within a minor’s Messages conversations—a feature that can be turned on or off by a guardian. This will alert a parent if their minor has received any image that is flagged as explicit. This seems appropriate to allow some supervision to protect vulnerable children from online predators; however, the algorithms currently used to detect explicit images are . It is widely known that benevolent, non-sexual content, particularly , is consistently To add to this, child advocates worry about the possibility of minors in abusive households being monitored by such a faulty and algorithm.

Though is not a new concept, these changes will suddenly affect billions of consumers. It’s been reported that when a child, like any other user, experiences negative behaviour online, they . However, there is currently no way to report messages within Apple’s Messages application. . After causing a tremendous stir in both the privacy and child advocacy communities, Apple that Messages scanning would only apply to those under 13, not teenagers, and have attempted to offer limited clarity on the new technologies.

Despite the changes, . Children need to be protected and prioritized in terms of technology experience, but their privacy matters too. It will be interesting to see the roll-out of Apple’s polarizing changes, particularly how they will affect Apple’s reputation and ecosystem security and if Apple will introduce any more changes moving forward as it responds to community concerns.

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Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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(FRT) is an increasingly popular and controversial tool used by public authorities and commercial institutions. FRT increases surveillance methods for investigative or security work. FRT easily collects vast quantities of biometric information with minimal cost or effort. Sensitive identity-based data is particularly valuable.

These databases and data collection methods are not without risk. Reports of and Canadian privacy law violations weaken the argument for implementing FRT. On June 10, 2021, issued a on FRT and -related surveillance as it pertains to the Canadian public. The special report specifically investigates the RCMP’s use of Clearview AI (with FRT), pursuant to section .

What is Clearview?

(“Clearview”) is an American-based entity that has amassed a wide catalogue of facial images with associated location information. Users with Clearview accounts can access the images for matching purposes. In October 2019, the RCMP confirmed that it . The OPC subsequently received a complaint under the . Clearview also has their

Canadian Legislation

The OPC investigation and report engages the Privacy Act, specifically : “No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.”

Further, applies to “private-sector organizations across Canada that collect, use or disclose personal information in the course of a .” Commercial activity is defined by law as “any particular transaction, act, or conduct, or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.”

, , and have their own privacy laws that may apply instead of PIPEDA. Most organizations within these provinces rely on provincial privacy laws, except for “,” or “ (FWUBs) such as banks, telecommunications and transportation companies,” .

2020 Investigation into Clearview

On February 21, 2020, the OPC, along with privacy authorities in , , and (“the Offices”), began investigating Clearview, their FRT database, and database disclosures pursuant to . Clearview’s collection practice was found to contravene privacy laws in all investigating jurisdictions. This investigation provided much of the backdrop for the subsequent RCMP investigation. As outlined in the , the Offices set out to identify whether Clearview:

1. “obtained requisite consent to collect, use and disclose personal information; and
2. collected, used and disclosed personal information for an appropriate purpose.”

The Commission d'accès à l'information (CAI) also sought to determine if Clearview had:

• “reported the creation of a database of biometric characteristics or measurements.”

The OPC’s February 2021 report of Clearview’s facial recognition tool identified .

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1. “scrapes” images of faces and associated data from publicly accessible online sources (including social media), and stores that information in its database;
2. creates biometric identifiers in the form of numerical representations for each image;

• allows users to upload an image, which is then assessed against those biometric identifiers and matched to images in its database; and

1. provides a list of results, containing all matching images and metadata. If a user clicks on any of these results, they are directed to the original source page of the image.”

The OPC found that Clearview’s database contains over , including pictures of Canadian faces (including children) collected without their knowledge or consent. Clearview allows law authorities and commercial entities to match people to online images within their database. The OPC found that the large image database “The OPC stated that police authorities can “essentially” subject billions of people ��to a non-consensual .

The OPC concluded that Clearview’s operations harm Canadians as they may detriment individuals whose photos are used without their explicit and informed consent. The method in which images were scraped from web pages was also found to be “”, among other Clearview activities.

The OPC provided three recommendations for Clearview to better comply with federal and provincial privacy laws: cease offering its facial recognition tool to clients in Canada; (ii) cease the collection, use and disclosure of images and biometric facial arrays collected from individuals in Canada; and (iii) delete images and biometric facial arrays collected from individuals in Canada in its possession.”

, noting that they had withdrawn from Canada during the investigation, and did not commit to the recommendations. Clearview also suggested that the OPC should suspend the investigation and not publish the report.

RCMP Investigation in the Special Report:

As Clearview was clearly found to contravene privacy laws, the RCMP’s use of Clearview technology was also the Privacy Act’s collection policies.

Curiously, ; that was false and concerned the OPC. According to , the RCMP made hundreds of search requests through the database on at least 19 accounts. The OPC assessed the RCMP’s They found that the RCMP failed to properly ensure that their use of Clearview technology complied with the Privacy Act. Further, the RCMP did not report any system implemented to “ Clearview’s data. This represented a serious lack of care regarding the sensitive information collected. Ultimately, the OPC recommended “ within a year to handle (any) novel collections of data.

The RCMP that they violated section 4 of the Privacy Act. In fact, they argued that under the Act, they do not have a duty to ensure legal compliance of private third parties like Clearview. However, they did agree to OPC’s recommendations in an effort to improve operations.

Soon after the OPC launched their RCMP investigation, the RCMP internally worked to some of the issues. They restricted their use of Clearview and started the “National Technology Onboarding Program” to look into how novel investigative techniques comply with the Privacy Act and the . As of July 2020, Clearview stopped offering its services to Canada, and the RCMP stopped using it altogether.

In light of this , the OPC published the “” (“the Draft”) to provide provincial, regional, federal, and municipal police agencies with more detailed privacy compliance information. The guide offers a with various related guidance, and data management related to , , , , , and more.

The OPC also offers up-to-date information on the accuracy of FRT and algorithms, emphasizing the . In the same way, the guide underlines “.” In other words, agencies should only collect and retain what is necessary, rather than cast a wide net. The is a rather thorough document with many references to specific case law and related authority. It demonstrates the importance of privacy in Canadian society and the seriousness in which Canadian officials deal with consent, surveillance, and novel technology. FRT may evolve into a useful tool, but until it meets the recommendations of the OPC, the RCMP will need some constructive and careful effort to use FRT again.

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Tiffany Wang is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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“Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.”

Nineteen Eighty-Four by George Orwell

Sprawling throughout New 91��ɫ City, cameras observe and record faces and movements. These seemingly omnipresent lenses conduct and generate facial-recognition data for the New 91��ɫ Police Department (“NYPD”), capturing footage to identify individuals for criminal enforcement efforts.��

Surveillance by security cameras is not unique to the Big Apple. Chinese police forces deploy , notifying security personnel whenever or target appears in sight. . In total, operate to surveil the population of New 91��ɫ.��

Not only do public cameras tower over the city, but also record information that the NYPD may access with permission.

The Big Apple’s capture action in an area less than two square miles. Over ninety percent of residents are racial minorities.��

, serves the United States federal and state police forces. In 2019, the revealed that Idemia’s algorithms are prone to confuse racial minorities’ faces. Similarly, the

of facial data raises concerns of . If commercial algorithms continue to demonstrate significant errors in identifying individuals with varying skin tones, these concerns will quickly escalate to . Tensions may ultimately result in the NYPD

Could over 15,000 eyes create a dystopia? After all, .����

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Smart cities use a combination of the IoT devices, software solutions, communication networks and user interfaces to collect data, which then is . Smart cities can provide personalized solutions to improve the urban quality of life, which is becoming increasingly important as the . Indeed, by is expected to live in cities. Across the world, the smart cities market is and will be worth an estimated $545.7 billion by 2025.

On a domestic front, Sidewalk Labs was planning on redeveloping the commercial and residential area of the with digital innovations from sensor-activated heated pavement to prevent ice build-up to the inclusion of infrastructure for autonomous vehicles. The project was going to be done with the �� its plans to bring smart city technology to Toronto due to the economic uncertainty caused by the COVID-19 pandemic. Before the abandonment of the project, surveillance and data collection aspects caused civil rights and citizen groups to express concerns over potential violations of civil rights and privacy.

that smart cities are an experiment of surveillance capitalism, and technology giants should not be trusted to handle the data they collect on residents safely. Though smart cities can remain an to affordable housing, environmental issues, and some of the urban challenges, the privacy issues regarding how the personal information will be handled must be addressed prior. Transparency will be important in increasing the trust of citizens. What data is being collected, how it is being monitored, how it is being used, to whom it is going to be sold or shared with are with the input of citizens before transforming Toronto into a smart city.

Written by Elif Babaoglu. Elif is a contributing IPilogue editor and also the Co-Director of Events of the Osgoode Privacy Law Society.

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For the past months, people in major cities of North America were back on the streets to protest amid the pandemic happening around the world. Two of those unfortunate incidents that led to these protests are: being killed while being arrested by the Minneapolis police officers and the death of after her mother called the Toronto police to take her to Centre for Addiction and Mental Health. Protestors are now facing not only concerns but also .

There are various ways in which individuals can protect themselves while participating in a protest, from their to their . ��Many online resources have stressed the importance of being anonymous in protesting against police brutality. The anonymity is an important factor as it can help protestors avoid being identified by the authorities, attracting unwanted surveillance and other possible negative consequences. There is significant for people participating in a protest. Journalists and fellow protestors may have recorded or live streamed the protest and relevant events or posted on social media. This kind of footages might not only be documenting what have happened, but also might be used to identify the protestors. In certain situations, being recognized or identified as participating in a protest might result in negative consequences, such as individuals losing their jobs.

Previously on IPilogue, “” discussed about facial recognition technology and Clearview AI and the relevant privacy law matters in Canada. ��“” has pointed out how the facial recognition technology works and how uploading mask selfies may have an unintended effect of enriching the training data for the algorithm.

People () have used masks long before this pandemic. Masks have been used when people were sick, allergic to something, facing air pollution, working in a hazardous environment, not wearing make up or preferring to disguise their identity. Due to the current COVID-19 outbreak, people outside Asia started to view the face coverings differently. At the beginning of this year, there were as to whether masks can prevent the virus from transmission. One of the arguments against wearing masks is that it would provide a for people and people might act less carefully. This might also be true in the situation for people believing that masks can conceal their identity.

On the one hand, the mask can provide protection to the person who is wearing it so that person will be less likely to be exposed to possible COVID-19 infection, since in some circumstances, physical distance cannot be kept. To some extent, marks (with protective glasses and other protective gear) can protect the person when there is tear gas or pepper spray. Also, to some extent, the mask can prevent the person from being identified by the facial recognition technology used by law enforcement surveillance.

However, on the other hand, the mask needs to be used properly in order to prevent the spread of COVID-19. Though masks might be medical grade, they are not always helpful in protecting the person from teargas or pepper spray. Moreover, there is being developed for recognizing people with partial images. in the United States and in Germany both developed the periocular technology for commercial use. While Rank One Computing specified law enforcement as one of their potential clients, BioID focused mostly on biometric authentication services and stated that their service separated identity from biometrics.

Periocular recognition technology was to enhance the performance of iris recognition algorithms. The currently developed by Rank One Computing uses only the eye and eyebrow regions of the face for recognition. Therefore, it can detect the human faces even when they are wearing masks. After the successful recognition of human faces, the periocular recognition algorithms will then proceed to the identification stage which is similar to the templates that face recognition algorithms use.

Periocular recognition technology as well as facial recognition and iris recognition technologies are not only developed for the use of law enforcement, but also for identify verification in retail, financial services, consumer electronic devices and healthcare sectors. These technologies can do more than preventing . On the one hand, people expect law enforcement to investigate crimes using the most updated technology available when watching TV shows like Forensic Files or fictional procedural dramas. However, on the other hand, people feared that the authority might be using the most updated technology available for surveillance purposes on or just ordinary citizens. The worries about one’s privacy became more imminent as the risk of surveillance increases.

The periocular recognition technology is relatively new and not yet attract much attention. It is also unknown as to how Canadian courts would react to periocular recognition results, either on a privacy perspective or as evidence in criminal law cases. Nonetheless, the concerns about privacy, human rights and civil liberty threatened by the use of facial recognition surveillance in Canada surely has been rising among . It is clear that people are becoming more and more concerned about their appearance in public, with or without masks.

Written by Ya-En Cheng, a second year JD Candidate at Osgoode Hall Law School. Ya-En is also an IP Innovation Clinic Fellow.

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