Police use of tech like Clearview AI that can breach privacy to be discussed at board
Proposed system doesn't seek enough public input, says law professor
A new procedure about how police use technology that could affect people's privacy is going before the Waterloo Regional Police Services (WRPS) Board today.
It comes just over a year after Chief Bryan Larkin apologized to the board for sharing "inaccurate" information about the service's use of Clearview AI, a controversial facial recognition software.
According to the new procedure, if a police member wants to use a technology that involves the collection of personal information – or that may affect a person's expectation of privacy – they must prepare a business case and inform their Senior Leader about how they plan to use it.
Before using a new technology, police must also seek advice about possible privacy risks. If the technology is considered high risk, then police may perform a so-called "Privacy Impact Assessment." This process could involve consulting with Ontario's Information and Privacy Commissioner, "or even the public," the procedure says.
Finally, the Chief of Police has to sign off on any new or expanded use of technology that could affect a reasonable expectation of privacy.
Public input should be 'default': law professor
Law professor Sam Trosow says he's glad to see a police service putting serious thought into how they use technology. But he said the procedure itself could be stronger.
"What they're doing is, the default is no public engagement and under some circumstances we might bring in some public engagement," said Trosow, who is an associate professor at the Western University Faculty of Law.
"I think they need to flip that. The default has to be a process where there is some public engagement."
Trosow said that doesn't have to mean disclosing investigative details. But he said any time a new technology is used that has privacy implications, police should consult with a full range of people who have an interest in the matter, such as defence lawyers, civil liberties activists and the social justice community.
Although it may be more work up front, Trosow said this strategy is better for police in the long run. Otherwise, he said they risk leaving themselves open to the argument that their use of a technology during an investigation was overreach.
"It would be better for them to err on the side of transparency in the development and implementation stage than to have actual viable prosecutions jeopardized because they used technology that was inappropriate," said Trosow.
Larkin wants provincial guidance
The board report also notes that municipal police services, such as WRPS, are spending a lot of time writing privacy assessments and guidelines on particular technologies at a local level, when it would be better to develop guidelines at a provincial level.
To that end, Chief Bryan Larkin is calling on the province's Information and Privacy Commissioner to develop a provincial working group on the matter.
In correspondence attached to the board report, he said this group would be made up of other chiefs and members of the policing community "as well as privacy, legal and records/information management specialists" in partnership with the Ministry of the Solicitor General.
Larkin said the provincial working group could "when deemed necessary" also consult with Crown attorneys, defence counsel, civil liberties activists, human rights advocates and people from marginalized communities.