LAW1042 Law and Technology Assessment 2 Case Study 2 Brief | RMIT

Assessment 2: Case Study 2 

Case Study 2: Facial Recognition and Policing (week 7) 

The Case: Smith v. Victoria Police 

The plaintiff, John Smith, has filed a lawsuit against Victoria Police, alleging that the use of facial recognition technology (FRT) by the police violated his privacy rights under the Privacy Act 1988 (Cth) and his rights under the Equal Opportunity Act 2010 (Vic). The incident in question occurred on 15 January 2025, when Smith was identified and detained by police using FRT at a public event in Melbourne. 

The Resources: 

In developing their arguments, the parties used the following resources as evidence: 

• Office of Australian Information Commissioner webpage: Facial recognition technology: a guide to assessing the privacy risks | OAIC
• University of Technology Sydney report: Facial recognition model law report.pdf
• Academic Book Chapter: Principled Regulation of Facial Recognition Technology (Chapter 18) - The Cambridge Handbook of Facial Recognition in the Modern State
• Podcast: Striking a Balance between Sec - Law of the Future - The Podcast on Law & Technology with Dennis Hillemann - Apple Podcasts 

The Judgment

Justice Hamsa was having difficulty drafting their judgment in this matter; their associates were on leave, and Justice Hamsa was very busy with other matters. They decided to use Microsoft Copilot to draft the judgment in this matter and did not double-check the result.

Judgment: Smith v. Victoria Police 

In The Supreme Court of Victoria

Between: 
John Smith (Plaintiff)
And
Victoria Police(Defendant) 

Judgement

Delivered by Justice Hamsa 

The key issues before the Court are: 

• Whether the use of FRT by Victoria Police constitutes an unlawful interference with Smith's privacy under the Privacy Act 1988 (Cth).
• Whether the use of FRT by Victoria Police constitutes indirect discrimination under the Equal Opportunity Act 2010 (Vic).
• Whether there is a sufficient legal framework governing the use of FRT by law enforcement in Victoria. 

Findings of Fact

3. On 15 January 2025, Victoria Police used FRT to identify and detain John Smith at a public event in Melbourne. The technology captured and processed Smith's biometric data without his explicit consent.

Plaintiff's Arguments 

4. Smith argues that the use of FRT constitutes an unlawful and arbitrary interference with his privacy. He references the guide by the Office of the Australian Information Commissioner (OAIC) on assessing privacy risks associated with FRT, which emphasises the need for explicit consent and transparency in the use of biometric data. Smith contends that the use of FRT without his consent violates the Australian Privacy Principles (APPs) under the Privacy Act 1988 (Cth). 

5. Smith asserts that there is an insufficient legal framework governing the use of FRT by law enforcement in Victoria. He cites the report by Monash University, which highlights the gaps in current legislation and the need for comprehensive laws to regulate FRT use. 

6. Smith claims that FRT has a higher error rate for individuals with certain ethnic backgrounds, leading to potential discriminatory practices. He refers to the podcast "Striking a Balance Between Security and Privacy," which discusses the inherent biases in FRT and their impact on minority communities. Smith argues that this constitutes indirect discrimination under the Equal Opportunity Act 2010 (Vic), as the technology disproportionately affects individuals based on their race. 

Defendant's Arguments 

7. Victoria Police argue that the use of FRT is lawful and necessary for maintaining public safety. They contend that the technology is used under existing laws and policies, and that it is a valuable tool for identifying and apprehending suspects. 

8. The police assert that the use of FRT serves the public interest by enhancing the efficiency and effectiveness of law enforcement. They argue that the benefits of using the technology, such as preventing crime and ensuring public safety, outweigh any potential privacy concerns. 

9.Victoria Police claim that there are adequate safeguards and protocols in place to prevent misuse of FRT. They reference the model law report by the University of Technology Sydney (UTS), which outlines best practices and safeguards for the responsible use of FRT. 

Application of Law 

10. After careful consideration of the arguments presented by both parties, the court has reached the following conclusions: 

• Privacy Concerns: While the right to privacy is a fundamental human right, it is not absolute. The use of FRT by Victoria Police, in this case, was conducted in a public space where individuals have a reduced expectation of privacy. However, the lack of explicit consent and the potential for misuse of biometric data are valid concerns that need to be addressed. The OAIC guide underscores the importance of consent and transparency, which were not adequately observed in this instance. The use of FRT without explicit consent violates the Australian Privacy Principles (APPs) under the Privacy Act 1988 (Cth).
• Regulation and Oversight: I find that the current legal framework governing the use of FRT by law enforcement in Victoria is inadequate. The Monash University report highlights significant gaps in legislation that need to be filled to ensure the responsible use of FRT. Comprehensive legislation is required to clearly define the scope, limitations, and oversight mechanisms for the use of such technology. This would ensure that the use of FRT is transparent, accountable, and respects individuals' privacy rights.
• Discrimination: The evidence presented regarding the potential bias and higher error rates of FRT for certain ethnic groups is concerning. The podcast "Striking a Balance Between Security and Privacy" provides insight into the discriminatory impact of FRT on minority communities. Under the Equal Opportunity Act 2010 (Vic), indirect discrimination occurs when a practice or policy appears neutral but disproportionately affects individuals based on a protected attribute, such as race. The higher error rates for certain ethnic groups constitute indirect discrimination, and any technology used by law enforcement must be free from discriminatory practices. I recommend that Victoria Police conduct regular audits and assessments to ensure that the technology is fair and unbiased. 

Conclusion and Orders 

12. The Court finds in favour of the plaintiff for the following reasons: 

• Violation of Privacy: The unauthorised use of FRT and the collection of Smith's biometric data without his consent constitute a significant breach of his privacy rights under the Privacy Act 1988(Cth). This breach has caused Smith distress and anxiety, warranting compensation.
• Discrimination: The use of FRT, which has a higher error rate for individuals with certain ethnic backgrounds, has subjected Smith to indirect discrimination under the Equal Opportunity Act 2010 (Vic). This discriminatory practice has further exacerbated the emotional and psychological impact on Smith.
• Detention and Emotional Distress: The identification and detention of Smith using FRT at a public event have caused him considerable emotional distress and reputational damage. Compensation is warranted to address the harm suffered. 

13. The Court orders Victoria Police to pay damages to the Plaintiff for AUD 50,000. Orders accordingly.

Your instructions 

You are one of Justice Hamsa's Associates. You return from leave to discover that the judgment in the case of Smith v. Victoria Police was written with Microsoft CoPilot and lacks sufficient detail in this application of the law to the case. You also discover that John Smith identifies as a gay man and was arrested at a Victorian Pride Event - facts which were not included in the judgment. 

Knowing that Justice Hamsa will get in trouble if it is discovered that they used AI to draft the judgment, you take it upon yourself to write a new judgment.

What you need to do: 

1. In 1,600 words (+/- 10%), rewrite the judgment above, correctly applying the facts set out in the judgment to the Privacy Act 1988 (Cth) and the Equal Opportunity Act 2010 (Vic). 

• In your application, you are not required to discuss all elements of privacy and discrimination law. Rather, you need to provide a more detailed analysis of the application in the judgment, ensuring that you refer to the correct legislation and case law.
• In particular, you need to research how privacy and discrimination law may be relevant to autonomous vehicles and then apply this knowledge to the case study. Your discussion should include relevant legal precedent; however, you are also encouraged to include authoritative commentary around the issue, such as government reports and academic research.
• In your judgment, reflect on the evidence used by the parties, whether it is authoritative and reliable, and how it should be used in the judgment. 

2. In 200 words (+/- 10%), critically reflect on the use of AI to write the judgment by Justice Hamsa. How accurate was the judgment? How detailed was the application of the law to the facts? Would this serve as a useful precedent for future cases on similar facts?

Research

 In addition to the sources relied upon by the parties and the required and additional course material, you must conduct your research for this assessment. You are not permitted to use generative AI to conduct research for this assessment.