Hangzhou City Proposes Laws Prohibiting Mandatory Facial Recognition

On October 26, a new regulations was submitted to the 30th meeting of the Standing Committee of the 13th Hangzhou Municipal People’s Congress for deliberation. The revised draft clearly stipulates that it is forbidden to force owners to enter a residential community through biometric information such as fingerprints and face recognition.

If the revised draft is finally passed, it will become the first local regulation in China that explicitly writes prohibitive clauses on facial recognition.

The "Hangzhou City Property Management Regulations" were implemented on February 1, 2002 and were fully revised in 2013. After the "Civil Code" was promulgated on May 28, 2020, the "Hangzhou City Property Management Regulations" was revised again. On September 10, the Hangzhou Municipal Bureau of Justice publicly solicited opinions on the revised draft from the public.

On October 9, 2020, the Hangzhou Municipal Bureau of Justice organized a legislative hearing on the revised draft. At the meeting, Guo Bing, an associate professor of Zhejiang Sci-tech University, as one of the presenters, said that the "Hangzhou City Property Management Regulations" lacked the system and regulations for the privacy and personal information protection of owners.

For example, after the outbreak of the covid-19 pandemic, property managers across the country issued mandatory requirements to install face recognition equipment, which has caused controversy nationwide.

Guo Bing believes that the protection of personal privacy is a very important highlight in the Civil Code. In order to better resolve disputes such as the mandatory installation of face recognition enabled access control equipment at residence compounds, the new version of the regulations should clearly provide guidelines on this aspect.

Since then, Article 44 of the revised draft formally submitted for deliberation stipulates that the property service provider shall not force the owner to use the shared facilities and equipment through fingerprints, face recognition and other biological information methods, so as to protect the normal use of the shared facilities and equipment.

It is worth noting that Guo Bing is also the plaintiff previously known as the "first lawsuit in face recognition" in China. In 2019, Hangzhou Wildlife World changed its access control system to face recognition systems in order to improve the efficiency of people entering the park.

Guo Bing was unwilling to let his face scanned in order to enter the park. He sued Hangzhou Wildlife World for violating the Consumer Rights Protection Law. The case opened in June 2020 and has not yet been judged.

Today, from airports and high-speed railway stations to mobile payment and subway classification security, the application of face recognition technology has gradually penetrated into all aspects of people’s lives.

At a seminar on September 23, 2020, Tsinghua University Law Professor Lao Dongyan shared his experience of "struggling" with community access control. According to her account, in March the community where she lived wanted to implement a face recognition system, requiring owners to enter facial information for access control upgrades.

At that time, she expressed opposition. After that, Lao Dongyan wrote a detailed legal opinion and mailed it to the property company and the property committee. A few days later, the director of the street office called her to discuss the matter. Finally, the street office provides an alternative plan. Residents who are unwilling to enter facial information can also enter the community by swiping their access card and ID card registration.

She also believes that face recognition is unconscious, non-contact, and invasive in use, and is more sensitive than fingerprint technology.

There have been calls for strengthening restrictions on the collection, transmission and storage of personal biometric information including faces. The recommended national standard "Information Security Technology Personal Information Security Specification" (GB/T 35273-2020), which came into effect on October 1, requires such information collection to be "individually notified" and "express consent", and in principle should not be stored beside the original personal biometric information,

In view of the fact that this national standard is not compulsory, some people in the industry have called for clarification of legal provisions to respond to social concerns.

The "Personal Information Protection Law (Draft)", which was first submitted to the Standing Committee of the National People’s Congress not long ago, also responded to this.

Regarding facial features, although the "Personal Information Protection Law (Draft)" does not clearly state its collection and processing specifications, facial features can be classified as personal biometrics in sensitive personal information, that is, once it is leaked or used illegally, it may lead to personal discrimination or serious harm to personal or property safety.

The "Personal Information Protection Law (Draft)" clarifies that the processing of such information must have a specific purpose and sufficient necessity, and individual consent must be obtained. Where written consent is required in accordance with the law, the provisions must be followed.

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