The Opinion sets out the ICO’s position and makes recommendations relating to the use of Live Facial Recognition by police forces, following an ICO investigation into how the police use this technology in public spaces. A report of the ICO investigation findings, together with the Opinion, were both published on 31 October 2019. Considering that this is the first Opinion issued by the Commissioner under section 116 and Schedule 13 of the Data Protection Act 2018, since the commencement of the Act, it shows how high a priority this topic is for the ICO.

Live facial recognition technology processes, in real time, biometric data, allowing police to identify individuals as they pass facial recognition cameras, although non-live methods of identification, i.e. from older or still images are also utilised by the police. As it involves the processing of biometric data, live facial recognition is brought within the scope of the GDPR and the DP Act 2018, with police forces having to comply with Part 3 of the DP Act 2018 (law enforcement processing). The use of live facial recognition by law enforcement constitutes sensitive processing of biometric data under section 35 of the Act and as such is subject to greater safeguards under the Act. For example, the police have to demonstrate that the processing is strictly necessary, which is a higher bar than merely necessary, and further that a Schedule 8 DP Act 2018 condition is met. The use of this technology by police forces in recent times has been on the increase, having been used at events where large crowds of people are expected such as football stadiums and the Notting Hill Carnival.