Statement by the President Requesting Suspension of the Use of Facial Recognition Systems by Railway Business Operators
According to a media report (Yomiuri Shimbun dated September 21, 2021), JR East Japan (East Japan Railway Company) started the use of a facial recognition system in July of this year to register the facial information of (i) ex-prisoners released after serving time and parolees who had committed serious crimes at venues such as station premises of JR East Japan, (ii) wanted suspects, and (iii) those who have behaved in a suspicious manner such as wandering around or loitering, and automatically cross-reference this database with the facial information of an unspecified number of persons captured by any of the 8,350 cameras installed and networked at 110 major stations, substations or other facilities, and when a targeted person is detected, security guards report to the police as necessary and/or inspect his/her baggage after visually verifying their face.
According to follow-up reports by various media companies on the following day (September 2), after the aforementioned report, JR East Japan suspended detection of those falling under the category of (i) while continuing detection of (ii) and (iii).
However, as stated in the JFBA’s “Opinion on Statutory Regulations on the Use of Facial Recognition Systems by Public and Private Sector Organizations and Incorporated Administrative Agencies” dated September 16 of this year, the use of facial recognition systems aimed at the general public would significantly violate the privacy rights of citizens, and therefore, even in cases where private business operators use such systems, explicit consent of the data subjects must be stipulated, and such systems should only be put into practice based on legal rules established after careful consideration on their necessity and appropriateness by the Diet composed of the representatives of the sovereign people.
In addition, although station premises are under the control of railway business operators, such premises are highly public as a wide range of the general public uses them on a daily basis and are considered to be indispensable to everyone’s life. In the case of stores, people can choose another store where no facial recognition system is introduced, but in the case of public transportation, an alternative option is not always easily available, so users are effectively forced to use a station where a facial recognition system has been introduced, impairing their privacy rights significantly.
Furthermore, even if surveillance of (ii) might indicate cooperation by the private sector in investigations by authorities, unlike cases where a member of station staff accidentally discovers a wanted suspect, such surveillance would be the same as in practice, the railway business operator systematically and continuously operates a wanted suspect detector 24 hours a day, monitoring all people within many stations as surveillance targets, and it can be said that it is incorporated into the criminal investigation system of the police on a daily basis. This literally means installing and using facial recognition systems by the police without a legal basis or a court warrant, evading the principle of no compulsory dispositions without statutory law (Article 197, Paragraph 1, Proviso of the Code of Criminal Procedure).
Additionally, in the case of (iii), the concept of “those who have behaved in a suspicious manner” is ambiguous, and there is a risk that the system will be administered in an arbitrary manner based on a subjective judgment standard of the private business operator. If this leads to a situation where people are deemed suspicious unknowingly and are subjected to baggage inspections or are reported to the police, the freedoms of a civil society will be threatened.
In today’s society, where facial image data can be retrieved, cross-referenced, and utilized in real-time, once such data is registered in a database, the behavior of a person can be accurately traced retroactively to past data and can be continuously monitored thereafter, which poses a grave threat to an individual’s mental and behavioral freedom. The use of facial recognition systems aimed at the general public in a public space is principally prohibited in the EU, and the same is increasingly legally regulated by State Laws or other statutes in the United States, as they share a similar recognition of the problem.
In Japan as well, the use of facial recognition systems, including that by private business operators, must be conducted under strict legal provisions established only after careful consideration of their necessity and appropriateness. Moreover, considering that the use of facial recognition systems in highly public spaces, for which no alternative options are available, cannot be easily justified by legislation unless users consent thereto, the use of facial recognition systems by railway business operators must be immediately suspended.
November 25, 2021
Japan Federation of Bar Associations
Tadashi Ara, President