The second trial of “the first case of face recognition” was held on December 29, 2020. In the opinion of Guo Bing, the main litigant and a special associate professor at the College of Law and Politics of Zhejiang University of Technology, the invalidation of the content of the format clauses related to fingerprint identification and face recognition of Hangzhou Wildlife World Co.
Guo Bing believes this is a claim with social significance: “Because if the invalidation is confirmed, it can force Wildlife World to make some kind of concession and will no longer require our annual card users to only pass the only biometric method as the only way to enter the park.”
Guo Bing applied for an annual card at the park in April 2019, and six months later, Wildlife World upgraded the entry method from fingerprint recognition to face recognition, and the two sides failed to negotiate on the entry method, card refund and other related matters, so Guo Bing took Wildlife World to court.
This is known as the “first case of face recognition”, the legitimacy and standardization of this cutting-edge technology continues to spark public debate, behind which are many problems such as technology abuse, data leakage and blurred boundaries. Guo Bing lamented to the Southern Weekend reporter, “The fact that it has generated so much attention is really beyond my expectation.”
Photo.
Guo Bing (Jian Nong/Image)
- A win without a victory
Guo Bing, 34, calls this action “emotional rights defense.
He didn’t want to file a lawsuit on his own, but rather hoped that a public interest litigation organization would step in to defend the legal rights of all annual card users. Because of the current systemic dilemma of personal information protection, the traditional private litigation system is difficult to effectively deal with.
For individuals, the cost of prosecution is too high: “I found that in the field of personal information protection, individuals go to lawsuits, from the perspective of economic rationality, he is just irrational, because we go to lawsuits may recover and we spend the cost is actually completely disproportionate.”
However, he still decided to make an attempt. in October 2019, Guo Bing took Hangzhou Wildlife World to court. on November 20, 2020, Hangzhou Fuyang District People’s Court ruled at first instance that Hangzhou Wildlife World deleted the facial features information submitted by Guo Bing when he applied for the annual card, and compensated Guo Bing for the loss of contractual benefits and transportation costs totaling 1,038 yuan.
Many friends sent text messages to congratulate him. But in Guo Bing’s own opinion, the case did not win.
“The reason why I say the case did not win at all is that four of my eight claims, which are aspects such as the invalidity of the content of the format clause, were not supported by the court at all.”
The content of the format clause nature involving fingerprint recognition and face recognition was rejected by the court. “The court of first instance was of the view that he said that Hangzhou Wildlife World’s use of fingerprints and face recognition were legally justified and necessary, and I absolutely cannot accept this.”
What was rejected was an important part of Guo Bing’s eight complete litigation requests. His claim also includes two other aspects: one is that the zoo is fraudulent and should be held liable for punitive damages in accordance with the Consumer Protection Act; the second is that the corresponding personal information should be deleted in the presence of a third party.
Guo Bing appealed again, hoping that the court of second instance would support all the claims. What he values most is the invalidation of the content of the face recognition format clause, “only then will they make real changes”.
Guo Bing found that many people overlook the potential personal and property security risks behind the technology. He pointed out that face recognition technology is non-contact technology, which does not require direct contact between the person and the device to authenticate the identity. As a result, lawbreakers can transfer other people’s account property or even use it for illegal and criminal activities after getting hold of information about their facial features.
This made him feel uneasy and pushed him to start the move to defend his rights.
2、From community access control to legislative proposal
Behind the “first case of face recognition” is the common difficulty of protecting face information, the misuse of technology and the blurred boundary.
In August 2020, Guo Bing received a notice from his property that his district would upgrade its access control equipment to face recognition. The property said that this is a unified upgrade system required by the streets to be able to face recognition health code verification, to help the epidemic prevention and control work.
He was still the deputy director of the district property committee, the first time to contact the property staff to negotiate, proposed that this move there is a great security risk, and not legal.
After the negotiation, the property said it would give feedback to the street. He thought the “face recognition” matter was over.
But at the end of October, he went out to pick up a courier and inadvertently found that the access control system had been replaced. He found that there was a small picture of himself on the system, which he did not know about. In the case of owners without face recognition certification, they directly Guo Bing previously for access control card submitted photo information, to use as facial features information for face recognition certification.
There are nearly 3,000 households and tens of thousands of owners in the district, and it remains difficult to defend their rights. He has used “the means to exhaust”, “do not rule out the way to continue through litigation”.
The pressure on his back is also great. “This is completely different from when I was suing Animal World, I have no worries, because it (Hangzhou Wildlife World) and I dozens of kilometers away, I do not go is. (Community) this does not work, you get this, offended the community, offended the street.”
There are many obstacles on the way to protect the rights of personal information. In Guo Bing, the most important thing is the legislative regulation, in legislation to raise the threshold of face recognition technology.
On October 21, 2020, the Personal Information Protection Law (draft) began to solicit comments. Guo Bing submitted a corresponding amendment proposal, proposing to develop particularly targeted protection measures for biometric information. “Although the draft has made great progress and has made clear provisions for targeted protection of sensitive personal information, I think it is not enough.” He said having specialized legislative norms is what makes for better operability.
Guo Bing said this is where the practice is positively feeding the legislation. He had hoped for a judicial ruling that would serve as a normative guide, but he didn’t expect the ruling to come so late; instead, he was able to make a more direct and timely appeal regarding legislation for the protection of personal information.
He was very impressed by the legislative hearing on “Hangzhou Property Management Regulations (Revised Draft)” held in October 2020, where he shared his encounter directly, prepared a 5-page written opinion and was the first to speak, highlighting the inadequacy of the draft in terms of the owners’ privacy and personal information protection system.
Later, Hangzhou People’s Congress announced a new version of the “revised draft”, and he saw a new provision in Article 44 of the obligations of enterprises, which stipulates that property service personnel shall not force owners to use common facilities and equipment by means of fingerprints, face recognition and other biological information.
At that moment, Guo Bing felt very excited: “In the legislation, it should be said that the first time such a provision. Ultimately can pass also have to NPC deliberations, there are many uncertainties, but I think at least the legislature has such an attitude.”
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