How to promote, guarantee and standardize the development of new technologies and their application in business, public welfare, social governance and other fields is a key issue in the modernization process of national governance system and governance capacity, which to some extent determines the effectiveness of this political process. The development and application of face recognition technology belong to such a topic. China has been in the forefront of the world in the development and application of face recognition technology. According to the report of the US Department of commerce at the end of 2018, the top four face algorithm technologies in the world are all owned by Chinese companies. China’s application of this technology is extensive and rapid. Its application scale is the first in the world and its accumulated data is the first in the world.
Non contact leads to asymmetric technology application
As a new technology to collect, recognize and verify human biological identity information, the most important feature of face recognition technology is non-contact. Any medium that can be installed with ordinary cameras can be used as a sensor to collect face information. With the help of software and algorithm of face recognition, information can be captured and stored in a long distance. This technical feature makes the application of this technology physically meet the needs of blocking, suspending the promise and cooperation of the collected subject, which further leads to the following features of face recognition technology in application.
First, the openness of technology application. First, it is the openness of the application subject. In theory, any subject can collect face biological information without specific subject at a very low cost. Therefore, it is unrealistic to simply dissuade and condemn the application of the technology, or directly use legal and administrative means to prevent the application of the technology. In the face of interests and selfish desires, this is an unstoppable technology. Secondly, the openness of application purpose. Whether using face recognition technology to catch criminals, or trying to improve the efficiency of students in class, or using it to identify homosexuals or psychotherapy, the technology is unlimited for application purposes. On the one hand, it makes the application prospect of the technology very broad, on the other hand, it also makes the problems of the application emerge in endlessly, beyond imagination. Finally, it is the openness of application consequence. In contrast to the conventional recognition that the application of face recognition technology means convenience, efficiency and safety, the result of the application of face recognition technology is uncertain.
Second, the asymmetry of technology application. On the one hand, there is asymmetry between the collecting side and the collecting side. The face information can be collected silently, so the collected party can not even know the fact that the face lines are scanned and collected. Even if we know and authorize, because authorization is one-time, the acquisition and storage of relevant information can be permanent, and its storage, transfer and application are not open and transparent, so that the acquirer and the acquiree are in an unbalanced equity structure. There is also a great asymmetry between the benefits and costs of technology application. It may be agreed that facial recognition is for convenience, and it does improve the convenience within the scope of daily direct perception. However, if facial tattoo is submitted, it means that racial information, gender information, psychological preference information, sexual orientation information, asset information, etc. are provided at the same time, which means that future actions are exposed to the relevant commercial institutions or government departments, such “transactions” ”The structure is obviously unequal, and the relevant practice situation will depend on the level of the rule of law and the health of the judicial mechanism.
Third, the intrusiveness of technology application. Although the threshold of face recognition technology is low, it has the characteristics of openness and arbitrariness, and non-contact, which also requires the consent and cooperation of the collected subject, the physical barrier and suspension are not the same as the standard exemption. When the facial biological information collection is silent, unauthorized, or the use of the collected facial tattoo is beyond the reasonable expectation of the collected subject, such technology still violates the collected subject in the specification. The collected subject will still have a sense of shame, anger, fear, helplessness and so on, in which rights are violated, dignity is ignored, privacy is peeped. The intrusiveness of the application of the technology will not be eliminated by the characteristics of non-contact, but will be intensified and enhanced. In the absence or weakness of relevant protection, the development and response of the counter technology will also be unstoppable.
Priority of rights over benefits
The application of face recognition technology is bound to face the double examination of law and morality. Technology is neutral, but how people use it is not. Generally speaking, when using this technology to achieve a certain purpose, the legitimacy and rationality of the purpose, as well as the ways and methods of using this technology to achieve the purpose, must meet the normative requirements and be limited within the scope of the principle of proportion. The main reasons are as follows.
First, compared with the benefit, the right always has the initial priority. If it deviates from the benefit of the right, it will lose its desirability and sustainability. The basis of the application of face recognition technology may be either benefit based, because it can bring some benefits to individuals and society, or rights based, because it is committed to respect and promote human rights. However, if the benefits of the technology are at the cost of infringement of rights, according to the principle of priority of rights, the application of the face recognition technology must be limited and corrected. In the field of face recognition technology application, do individuals have the right to voluntarily give up their rights for benefit? The preliminary answer is that individuals do not have the right to give up their inalienable rights for benefit. Beyond the scope of this immunity right, individuals have the right to limit their own rights for benefit. Of course, in this case, the acquisition party and the application party must obtain agreement with the subject on the understanding of benefits under the condition of compliance, and be limited by the agreement.
Second, as a practice, the application of face recognition technology is bound to accept the evaluation and constraints of the value requirements built in practice. Face recognition technology is to collect personal biometric information, and the unique biometric information belongs to a part of individual privacy, so this practice has built-in value and requirements of privacy protection. In addition, because the way and purpose of capturing and applying individual privacy information is related to whether the individual is treated as a dignity subject, the relevant practice has built-in values and requirements of human dignity. Moreover, because the application of this technology involves many subjects’ agreement and the distribution of rights and responsibilities, the practice also needs to be evaluated and constrained by the fair value. If the subject of relevant practice involves the public authority, the value sequence will also include the normative requirements of the rule of law. Therefore, the application of face recognition technology should at least accept and meet the evaluation and norms of privacy, dignity, fairness and the rule of law.
Thirdly, from the perspective of utility, the application of face recognition technology must not stifle the vitality and innovation space of society. The development and application of face recognition technology may improve the efficiency of error detection and help to combat illegal, moral, policy and even rule behaviors, but even if it is a perfect face recognition technology, it is impossible to eliminate all improper behaviors. A faultless society is not a perfect society, and a good life cannot be created in this way. The possibility of making a mistake is a characteristic embedded in a society, and also the foundation of its vitality and innovation. Using this kind of new technology to find and correct minor misconduct, it is easy to create a social atmosphere of extermination and curb the vitality and innovation space of society. Therefore, we must be careful about the motion of integrating face recognition technology with the construction and application of credit system.
Legislation to establish effective firewall
First of all, we need to establish the compensation mechanism and accountability mechanism for the application of face recognition technology through legislation as soon as possible, so as to establish an effective firewall for the related technology development and application. Because large-scale network technology companies have technical and scale advantages in this respect, as well as the low threshold, openness and asymmetry of this technology itself, we can consider introducing punitive compensation system and improving the legal measures to investigate the criminal responsibility of relevant enterprises and individuals, and the relevant legal proceedings can adopt the mode of public interest litigation.
Secondly, establish the subject and conditions of face information collection and application through legislation and justice. Generally speaking, it should be made clear that the information subject is about to enter the scope of information grabbing. When collecting information, it must provide reasons and obtain the consent of the person being collected. The application of relevant technology and information by the government should be limited to the public welfare purpose, and it needs to establish an effective registration system, filing system, and self responsibility system; In the commercial field, the conditions and restrictions for commercial entities to obtain, use, store and transfer face biological information should be enumerated rather than generalized format authorization, and strict norms and restrictions should be carried out; the transfer, sale and disclosure of face identity information by commercial entities to any entity other than the decision of the high court should be prohibited.
Finally, establish the defensive mechanism of the right subject. Considering that face biological information may become a widely used public resource, and the development of counter technology may break the relationship between face biological information and identity information exclusive, we should establish a confirmation mechanism of inversion of the burden of proof in the field of large-scale commercial institutions involved in litigation and criminal and administrative litigation. In addition, on the basis of meeting the reasonable conditions, the right of the right subject to cut off his face information and other rights and economic resources should be confirmed and guaranteed.
Editor in charge: CT