Nicholas Keung The Star Mon., Sept. 19, 2022
Canadian authorities can’t just brush off allegations that they are using facial-recognition software to discredit asylum-seekers, a court has ruled.
The decision by the Federal Court comes in a case that has cast a spotlight on the possible use of the technology by the Canada Border Services Agency — a practice the agency denies.
At the centre of the case are Asha Ali Barre and Alia Musa Hosh.
The pair claimed to be Sunni Sufi Muslims, who fled sectarian and gender-based violence from Al-Shabaab and other militant Islamist groups in Somalia.
They were accepted by Canada as refugees in May 2017 and July 2018, respectively.
In 2020, border officials moved to strip their refugee status before the Refugee Protection Division tribunal, alleging in part through photo comparisons that they were in fact Kenyans, a claim the women denied. Barre and Hosh lost their refugee status, and have appealed in court.
At issue was the alleged use of facial recognition technology, but also the privilege that authorities enjoy in withholding the source of their photo comparisons — and their investigative methods — under the Privacy Act.
“The RPD gave a cursory nod to the Respondent’s Privacy Act argument and failed to engage in the necessary consideration of balancing the alleged protection of privacy rights with the Applicant’s procedural fairness right to disclosure,” Judge Avvy Go wrote in a recent ruling in favour of the women’s joint appeal.
“The RPD’s swift acceptance of the Minister’s exemption request, in the absence of a cogent explanation for why the information is protected from disclosure, appears to be a departure from its general practice.”
Last year, Canadian Privacy Commissioner Daniel Therrien found that the RCMP committed a “serious violation” of Canadians’ privacy by conducting searches of Clearview AI’s facial recognition database, which contains billions of photos of people scraped from the internet, including from social media sites.
Facial recognition technology has been used in Canadian immigration settings to verify the identities of incoming travellers through automated kiosks at airports, but border officials have maintained they don’t use it in immigration enforcement.
Lawyer Quinn Campbell Keenan, who represented Barre and Hosh, was pleased with Go’s decision.
“It sent a clear message to the minister and the Canada Border Services Agency against the use of photo comparison or matching software to single out individuals for possible deportation on the basis of this very dubious photo matching technology,” she told the Star.
Other lawyers also hailed the decision after seeing a surge of former and current Somali refugees having their identities challenged by the border agency through photo matching with Kenyan travellers who had previously entered Canada legally. Many of those cases are now being contested in court.
“There has to be a balanced approach where, at the minimum, the RDP should at least review the possible disclosure that the border agency has,” said lawyer Tina Hlimi, who has seen more than a dozen cases in her practice since 2019 where Somali clients’ identities were challenged based on this investigative method.
“It’s refreshing to see a different perspective when we have been arguing in vain that border agents are perhaps using facial recognition technology.”
According to the court, in support of her asylum claim, Barre had “an identity witness,” a Canadian citizen from Somalia she had met in Somalia, and a letter from the Somali Multi Service Centre, which had conducted a verification assessment of her knowledge of and connection to Somalia.
Hosh’s refugee acceptance was based on a survey by the Loin Foundation that verified her identity, as well as her ability to speak about the Tunni clan and converse with the interpreter fluently in Somali, the court said.
In their attempts to revoke the women’s refugee status, Canadian officials submitted evidence based on photo comparisons between the women and two Kenyan citizens who arrived in Manitoba as international students, just before Barre’s and Hosh’s refugee claims were made.
Despite the refugees’ objection to the photo comparison and allegation about Clearview AI database being used in their cases, the refugee tribunal agreed with the government that the firm ceased providing services in Canada on July 6, 2020, and an “App that is banned to operate in Canada would certainly not be used by a law enforcement agency such as the CBSA.”
It also found “great similarities” between the photos in either case, even though lawyers for the women had argued that facial recognition software is unreliable and particularly flawed in identifying darker-skinned females in research studies.
The court was critical of the tribunal’s conclusion that Clearview AI was not involved when no inquiry was made as to when the photo comparisons were created in the two cases.
“While the RPD relied upon the fact that the RCMP was the last remaining customer of Clearview AI and stopped using it in 2020, this does not necessarily mean (Canada Border Services Agency) was not using the software when the photographs were collected in 2016 and 2017,” said Go.
“The RPD’s finding that the Minister did not use Clearview AI was not supported by evidence, and it failed to consider the Applicant’s submissions highlighting the danger of relying on facial recognition software.”
Government lawyers argued in court that Barre and Hosh were provided with the photos of the Kenyan women, were aware of the case they had to meet and had the opportunity to respond. The obtaining of the photographs and comparison, they said, was a matter of an investigation done by border officials, and thus subject to non-disclosure privilege.
“The RPD reached a conclusion about the reliability of the photo comparisons based on the Minister’s say-so with no further details about the ‘how.’ It then took the Minister’s word that they must protect the details of their investigation under the Privacy Act without having to demonstrate whether the requirements for non-disclosure, as set out in the Act, were met,” Go said.
“The RPD’s conclusion, which was void of transparency, intelligibility, and justification, must be set aside.”
Lawyer Paul Dineen, who represented Barre and Hosh before the RPD, said the women are not out of the woods as they wait for a new tribunal hearing to decide if they can keep their refugee status.
However, depending on where further arguments go, he said officials are left with two choices.
“They either have to reveal the methods of the investigation or they have to withdraw the photos,” said Dineen.
Both Barre and Hosh declined the Star’s interview requests.