In a win for privacy, the Court of Justice of São Paulo blocks facial recognition on a public transport route. On May 7, judge Patrícia Martins ordered ViaQuatro, a concessionary of the São Paulo metro, not to capture images, sound, or any other personal data of everyday commuters through cameras or other devices without their prior consent. The decision will protect the privacy of around 350,000 passersby.
“This cornerstone ruling banning facial recognition technology in the São Paulo metro is a victory not only for Brazil, but the rest of the world. It sets a precedent that facial recognition technology, especially automated gender and emotion recognition, implies processing biometric data,” said Verónica Arroyo, Policy Associate for Latin America at Access Now. “As a next step, governments must inform themselves on how implementing this technology creates extreme harm, and ban automated gender recognition in public spaces.”
This precedent-setting court decision comes after the Instituto Brasileiro de Defesa do Consumidor (Idec) began a public civil action in 2018 against ViaQuatro for its use of interactive doors with facial recognition cameras that “inferred” people’s emotion, gender, and age, allowing the company to personalize future advertisement pieces. In 2020, Access Now filed an expert opinion in this case, arguing that the implemented system processed personal data that can be used to identify people, there is no scientific evidence that people’s emotion can be inferred, and inferring gender is discriminatory against trans and non-binary people.
“This decision is extremely important to guarantee the rights of public transport users, and to send a message to companies and public authorities that rights must be respected,” said Michel Roberto de Souza, digital rights program lawyer at Idec. “It should not be permissible for a company that serves thousands of people a day to put in place a system like this without adequately informing passersby, without transparency, and without asking for consent.”
In the ruling, the judge noted the lack of transparency and consistency of the company, as highlighted in Access Now’s expert opinion. According to the court, ViaQuatro failed to submit information about the invasive system, needed as proof that they only use people’s images for statistical purposes as they claimed. ViaQuatro also failed to inform people about the use and capture of their image, and during the legal process even claimed that they do not perform facial recognition, but only “facial detection.” This is misleading as they actually performed two types of facial recognition; facial detection and facial classification when inferring age, gender, and emotion. As a result, the judge, who categorized the company’s actions as “abusive business practices,” ordered the company not only to refrain from capturing biometric data without consent, but also to pay R$ 100,000.00 (approximately 19,124.00 USD) for collective moral damages.
Access Now and a global coalition of civil society organizations is continuing to fight to abolish automated recognition of gender and sexual orientation and mass biometric surveillance in Europe.