Facial recognition has come back into focus here in Aotearoa New Zealand with the conclusion of a controversial facial recognition technology trial by Foodstuffs North Island.

Back in March 2024, I wrote Foodstuffs hoped the implementation of FRT would reduce retail crime. Under the trial, 25 owner-operated stores would test the effectiveness of the FRT. The Office of the Privacy Commissioner asked Foodstuffs to provide evidence that FRT was an effective and justified way to reduce crime in view of the significant privacy impacts and risks, including accuracy, bias and proportionality.

The OPC noted global evaluations of FRT systems showed false matches were more likely to happen for people and women of color. The OPC was particularly concerned about the impact FRT would have on Māori, Pasifika, Indian and Asian customers, given the system was not trained on New Zealand's population.

As it turns out, this concern was well-founded. In April 2024, just few months after the trial commenced, a Māori mother was misidentified as a "trespassed thief" at one of the supermarkets running the trial. The incident, which occurred on the mother's birthday and in front of her two teenage children, left her feeling upset and racially discriminated against.  

On 25 Sept., the OPC announced it is evaluating the results of the trial to better understand its privacy impacts. This will include a review of its own data alongside the results of the independent evaluator who designed and oversaw the trial. Unsurprisingly, a key focus of the review will be the impact of the FRT on Māori, Pasifika, Indian and Asian shoppers.

The outcome of this review is expected to inform the OPC's decision on the development and implementation of the draft Biometrics Processing Privacy Code, a code of practice issued under the Privacy Act that will regulate the processing of biometric information, including facial recognition information.

The OPC received 250 submissions on the draft code, with almost every submission from members of the public indicating people are concerned about the use of biometrics in Aotearoa New Zealand. In August, the OPC stated it was considering the submissions and said it expects to announce its decision on the code later this year.

Biometrics will be a focus of the upcoming IAPP ANZ Summit 2024 in Melbourne, which will include a panel session reviewing evolving biometrics regulation, an in-depth session with the chief executive of Consumer NZ on consumer sentiment about FRT and two sessions on indigenous privacy perspectives that will likely touch on the potential impacts of AI on indigenous communities. There is still space to register and get involved in these highly topical discussions.

Daimhin Warner, CIPP/E, is the country leader, New Zealand, for the IAPP.