Introduction

The reporting that the recent Foodstuffs Facial Recognition Trial resulted in reduced harmful incidents while respecting privacy, may be an indication that we can expect further rolling out of Facial Recognition Technology (FRT) by not only Foodstuffs, but also other retailers and businesses.

The OPC is evaluating the results as part of its inquiry into the Foodstuff FRT trial. This evaluation is likely to influence the OPC’s decision on whether to proceed with the Code. An exposure draft of a proposed Code was issued earlier this year for public consultation. Our earlier article provides an overview of the key features of the draft Code and its potential implications.

The OPC received 250 submissions on the draft Code from a diverse group including individuals, businesses, government agencies, and Māori stakeholders. The OPC has released a summary of the feedback that it received in response to the proposed Code. 

Response to the draft Code

The feedback revealed strong public concern about biometric surveillance, government use, and private sector exploitation. There was broad support for the proposed Code, but several groups raised concerns that:

• the Code is overly complex and requires simplifying to make its technical terms more readily understandable;
• the Code’s proposed notice and transparency requirements are unclear and repetitive;
• clear, detailed guidance will be needed on how to apply the rules, including the proportionality tests, safeguards, and cultural impacts, especially for Māori and other demographic groups;
• compliance with the Code in its present form would have a significant cost and administrative burden for organisations.

The feedback also identified the need to review:

• the broad exclusion for health agencies; 
• the exclusion of heartbeat biometrics and how wearable devices are to be treated;
• when the code will apply (originally it was to be effective immediately for new biometric processing, with a six-month compliance period for existing operations); and
• whether more exceptions are necessary to make sure that any rules are targeted at the high-risk uses of biometrics, rather than the low-risk beneficial uses of biometrics.

In response to the draft Code, NZ Tech, a key technology industry body in New Zealand, published an open letter to key Members of Parliament. The open letter argues that the Code could have severe unintended consequences for businesses and the economy, stifle innovation and negatively impact privacy. The letter requests a pause in the Code’s implementation to allow for further consultation and revisions.

What’s next?

In response to the feedback, the OPC has emphasised that the Code is not final. The OPC will review the feedback in detail and decide by the end of the year whether to proceed with the Code. If it does proceed, there will be another round of public consultation on the updated proposal together with draft guidance to help explain the technical nature of biometrics and the proposed new privacy rules in more detail.

Our thoughts

The large number of submissions reflects the concern around this topic. Clearly the feedback has caused the OPC to pause for thought - it is now debating whether to proceed with the Code.  

While opinions varied, the feedback drew out some common themes and has provided the OPC with clear direction for revisions to the Code. If the OPC proceeds with the Code, we expect to see significant changes in the new version, and another round of consultation.

Get in touch

Please get in touch with our contacts if you would like to know more about how the Code may impact your business.

Special thanks to James Burnett for his assistance writing this article.