An invaluable tool to prevent retail crime or an invasion of privacy that can be used to track you without your consent?
Justice Minister Paul Goldsmith wants to allow the use of facial recognition technology (FRT) in the fight against retail crime, despite acknowledging “tensions” with people’s right to privacy.
“I’m on the side of being as enabling as we can, primarily because the strong feedback we’ve had – certainly in the trial – [is] that it diffuses the situation,” Goldsmith told the Herald.
“If you know somebody’s come in, they’ve robbed you 10 times before and you get them one minute after they arrive at the door, it’s a much easier discussion than dealing with them as they’re trying to get out with a full trolley.
“I’m wanting to figure out what we can do to make sure it’s as useful as it can be. There is obviously a tension with privacy legislation, so that’s an area of discussion.”
There’s already strong pushback from the NZ Council for Civil Liberties, which says such sensitive information should not be collected without consent. It fears a slippery slope to powerful surveillance: database systems with a history of people’s whereabouts that police can access without a warrant, in a similar way to how police use number plate recognition systems.
Retail crime is estimated to cost the sector $2.6 billion a year and Goldsmith has already announced plans to broaden citizens’ arrest powers.
FRT is among the next steps in the Government’s plan to tackle retail crime, as well as strengthening trespass law and introducing on-the-spot fines for shoplifting.
Justice Minister Paul Goldsmith wants to enable facial recognition technology. Photo / Dean Purcell
Privacy tensions
Goldsmith has been laying the groundwork for more FRT, with the Ministry of Justice doing a rapid review of the Privacy Act last year in search of barriers to FRT to prevent retail crime.
The Office of the Privacy Commissioner lists several factors to consider when using FRT, including whether its use is unfairly or unreasonably intrusive, how personal information is stored and how long it is kept.
If anyone feels their privacy has been breached, they can raise it with the organisation in question and then with the commissioner’s office if still not satisfied.
Privacy Commissioner Michael Webster is currently evaluating the supermarket trial and expects to release his findings in June. Later this year, he will issue a biometrics code to help those wanting to use such FRT “while giving people confidence it’s being done safely and fairly”.
A draft of the code included transparency obligations, limits on uses such as “emotion analysis” and a proportionality test – is collecting data about someone proportional to the potential threat they pose?
Retail NZ chief executive Carolyn Young wants retailers to be able to use FRT to identify people who’ve been issued a trespass notice.
“When the person comes in store, you can stop them and say, ‘Hey, you know you’re not meant to be in here. We have trespassed you. Could you please leave?’
“If somebody’s offended in your store, you don’t want them to come back and reoffend in your store. So trespass would become the foundation of what in many cases would be a person loaded into your FRT [watchlist].”
Carolyn Young, CEO of Retail NZ.
Young said the risk of misidentification can be mitigated, noting the Foodstuffs trial had a 90% matching threshold, which then went to two specially-trained staff for further verification.
This was the stage where common sense could intervene if, for example, the quality of the image was poor.
“It’s how you then approach the next step – who, likely, is that person, and what have they done in the store previously? Maybe you just observe them,” Young said.
As for personal data collection, Young said most people enter a store and their image is deleted because they aren’t on an FRT watchlist.
“You’ve got CCTV to keep an eye on what’s happening in the store. What the FRT camera does is tell you who’s in store and what risk that person is to staff and customers.
“It’s another tool to help prevent crime and violent behavior in store, and the key thing, really, is we want the staff who work in retail to be safe.”
One of the main concerns for the Council of Civil Liberties is that the proportionality test is self-imposed; a store can decide to keep FRT data for as long as it likes, on the basis the person poses or might pose a reasonable threat.
“It’s all about making the nice justifications for yourself,” council chair Thomas Beagle said.
“And no one’s gonna test that unless, in a very unlikely circumstance, someone takes a complaint to the Privacy Commissioner. That then goes to the Human Rights Tribunal, which can then say ‘We want to look at your assessment’. Because they don’t have to publish the assessment either.”
The wider concern is the possibility of the build-up of databases with information about a huge number of people, where they’ve been and who they’ve been there with.
And if police can access them without a warrant, are we comfortable with that?
Police can already access information in privately-owned number plate recognition systems, which can be cross-referenced with information on Auror, the retail crime intelligence system, to help gather evidence about possible crimes.
Thomas Beagle, chairman of the Council For Civil Liberties.
“We see the end game of this is that people are going to set up facial recognition systems, those are going to be collated into databases and those databases will inevitably become available to the police.
“Twenty years ago, we used to worry that the Government would set up scanning and recognition and tracking systems and so on. What we didn’t realise then was that they don’t have to. Private business will do it for them and then the police will access those systems when they want.”
Beagle applauded the path taken in Australia, where the Privacy Commissioner there said FRT collects such sensitive information that consent should be required.
The Australian commissioner found that the use of FRT in 63 Bunnings stores was “the most intrusive option, disproportionately interfering with the privacy of everyone who entered its stores, not just high-risk individuals”.
‘Not fit for purpose’
Cabinet will make decisions about trespass law and shoplifting fines, which are in the current action plan, by the end of June.
Goldsmith said the trespass law, from 1980, was “way out of date”.
“All the feedback we get, particularly from retailers, is that it’s just not fit for purpose. If you trespass somebody, it’s such a complicated thing. It doesn’t work. It needs a fundamental rethink.”
Retailers have previously complained about the practicalities of getting a person’s name and address as they’re being trespassed, or a lack of police resources to respond quickly to someone who appears to be breaching a trespass notice.
Another common criticism is the penalties are too soft – a $1000 fine or up to three months in jail – but Young said the most important thing was to stop the person returning to the store.
Justice Minister Paul Goldsmith said the trespass law was no longer fit for purpose. Photo / Getty Images
“Fines are tricky because often people don’t pay them anyway. In the Ministerial Advisory Group [for Victims of Retail Crime], we’re trying to work out what percentage of fines are being paid, and at what level.
“The key thing the retailer wants is for disruptive people not to come back.”
Young had a similar assessment of the coalition commitment between National and NZ First for on-the-spot fines for shoplifting.
“We’re more focused on the prevention side. Those fines – will they be a deterrent? That’s the challenge. It’s not like we’re against it, necessarily, but I just don’t know that it’ll move the dial.”
Goldsmith said alleged shoplifters currently had to be taken to court, even for items of little value.
“It’s not worth it. We’re looking at some sort of infringement regime so you can get some consequence, without taking forever.”
The fines have long been NZ First policy, though what the level of fine would be remains open for discussion.
“It could be the value of all the goods,” Goldsmith said, though that wouldn’t be much of a deterrent for someone trying to steal a pack of cigarettes.
“No, that wouldn’t work. It would work on a $900 jacket.”
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Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
