The human face is special. It is simultaneously public and personal. Our faces reveal sensitive information about us: who we are, of course, but also our gender, emotions, health status, and more.

Lawmakers in Australia, like those around the world, never anticipated our face data would be harvested on an industrial scale, then used in everything from our smartphones to police CCTV cameras. So we shouldn’t be surprised that our laws have not kept pace with the extraordinary rise of facial recognition technology.

But what kind of laws do we need? The technology can be used for both good and ill, so neither banning it nor the current free-for-all seem ideal.

However, regulatory failure has left our community vulnerable to harmful uses of facial recognition. To fill the legal gap, we propose a “model law”: an outline of legislation that governments around Australia could adopt or adapt to regulate risky uses of facial recognition while allowing safe ones.

The challenge of facial recognition technologies

The use cases for facial recognition technologies seem limited only by our imagination. Many of us think nothing of using facial recognition to unlock our electronic devices. Yet the technology has also been trialled or implemented throughout Australia in a wide range of situations, including schoolsairportsretail stores, clubs and gambling venues, and law enforcement.

As the use of facial recognition grows at an estimated 20% annually, so too does the risk to humans – especially in high-risk contexts like policing.

In the US, reliance on error-prone facial recognition tech has resulted in numerous instances of injustice, especially involving Black people. These include the wrongful arrest and detention of Robert Williams, and the wrongful exclusion of a young Black girl from a roller rink in Detroit.

Many of the world’s biggest tech companies – including MetaAmazon, and Microsoft – have reduced or discontinued their facial recognition-related services. They have cited concerns about consumer safety and a lack of effective regulation.