ICO warns against using biometrics for ‘emotional analysis’

Ongoing concerns

In June 2021, then-information commissioner Elizabeth Denham published an official Commissioner’s Opinion about the inappropriate and reckless use of live facial-recognition (LFR) technologies in public spaces, noting that none of the organisations investigated by her office up to that point were able to fully justify its use.

“When sensitive personal data is collected on a mass scale without people’s knowledge, choice or control, the impacts could be significant,” Denham wrote in an accompanying blog post, adding that although “it is not my role to endorse or ban a technology”, there is an opportunity to ensure its use does not expand without due regard for the law.

There has also been a massive expansion of workplace surveillance and monitoring software since the onset of the Covid-19 pandemic, which allows employers to see a range of information about their employees activities. This includes anything from keystrokes and mouse clicks to employee’s physical locations and use of the internet.

Using these and a variety of other information – including biometrics – the software can help enterprises to conduct predictive and behavioural analytics, enabling managers to understand and track how productive employees are over time. It can also be used to feed algorithms with human resource functions, including hiring and firing.

According to a recent survey by Prospect Union, which represents specialist technology workers, a major part of the problem is that workers themselves are being kept in the dark about how the surveillance software monitoring them works.

For example, only 11% of survey respondents said they were “very sure” what data their employer was collecting about them and why. Just over two in five were “somewhat” or “very” unsure what data their employer was gathering on them or how it was being used.

In March 2022, the Trades Union Congress (TUC) said the intrusive and increasing use of surveillance technology in the workplace was “spiralling out of control”, and pushed for workers to be consulted on the implementation of new technologies at work.

In June 2022, the Ryder Review – an independent legal review conducted by Matthew Ryder QC of Matrix Chambers – found that the current legal framework governing biometric technologies is not fit for purpose, has not kept pace with technological advances and does not make clear when and how biometrics can be used, or the processes that should be followed.

It also found that the current oversight arrangements are fragmented and confusing, and that the current legal position does not adequately protect individual rights or confront the very substantial invasions of personal privacy that the use of biometrics can cause.

While the review focuses primarily on the use of biometrics by public authorities, particularly by police forces, it also takes into account private sector uses of biometric data and technologies, such as in public-private partnerships and for workplace monitoring.