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Data for sale in Brazil: Access Now files expert opinion in São Paulo metro facial recognition case

24 June, 2020  — Yesterday, Access Now filed an expert opinion (Portuguese) in IDEC vs. ViaQuatro, the case filed by the Brazilian consumer rights organisation IDEC  against ViaQuatro, a concessionary of the São Paulo metro. The expert opinion, submitted in the final days of the court case, addresses the topics of facial categorization/analysis and data processing in biometric systems. It warns about the lack of scientific basis for emotion detection and the systematic harms caused by automated gender-recognition technologies against trans and non-binary people. The court should weigh these factors and reach a conclusion that the company’s practices violate the fundamental rights of passengers on the metro in São Paulo. 

“Human rights are at the center of this court case IDEC has filed against ViaQuatro. We have serious concerns around the anonymization of data, the lack of permission obtained by people simply trying to use the metro, the poor transparency, and the complete miscategorization of gender. This technology implemented by a private company in a public space sets a frightening precedent for the future of biometric facial categorization technologies in Brazil, and across the world,” said Verónica Arroyo, Latin America Policy Associate at Access Now.

“This system installed by ViaQuatro collects and processes sensitive biometric data of all metro users without any possibility of consent. This is made all the worse by the fact that this data is processed to make scientifically baseless inferences about people’s emotions and to determine their gender in a way that violates the rights of trans and non-binary people,” said Daniel Leufer, Mozilla Fellow at Access Now.

In 2018, IDEC filed a public civil action against ViaQuatro for their deployment of “smart billboards” — the Digital Interactive Doors System — across stations of the metro line under their administration, affecting the rights of approximately 350,000 passersby. IDEC is asking for compensation for collective damages as they believe that the deployment of this technology violated the basic right to access to information and the protection of personal data. According to ViaQuatro, the system developed by the US company AdMobilize is capable of detecting human faces and predicting the emotion, gender, and age of passersby who look at the advertising panels. Moreover, they claim that this can all be done without processing personal data and in a manner that is compliant with the European Union’s General Data Protection Regulation. In our expert opinion, we showed that these claims were technically, scientifically, and legally problematic. Our main arguments included:

  • Contrary to the claims made by ViaQuatro and their experts, the Digital Interactive Doors System does collect and process biometric data of passersby. Therefore, it would be important to provide clear information about the collection and processing of this data, particularly in a public space where there is no real option for users of the metro to refuse consent. However, this has not occurred.
  •  Despite their claims about being able to “detect emotion,” there is no scientific basis for the claim that the Digital Interactive Doors System can infer the emotional states of passersby. However, the fact that the inferences made about the emotions of passersby are invalid does not make them less harmful or invasive as, in the end, we still have a system surveilling and judging people’s private emotional states. 
  • Finally, in terms of gender, the system only categorizes people in two groups: female and male. This assumption of a binary concept of gender that is based on physiognomic features fails to account for the existence of non-binary and trans people, and perpetuates the discrimination and harms that these people face in Brazil. 

Access Now’s expert opinion follows our position to call for a ban on biometric data processing that enables or amounts to mass surveillance in public spaces, and to hold the private sector accountable for violating human rights.