Whilst the European Commission’s (EC) proposal for the regulation of Artificial Intelligence (AI) is expected at the end of the month, civil society organisations are trying to make their voices heard about biometric mass surveillance tools. After the approval by the EC of their European citizen initiative was announced in January 2021, the European Digital Rights (EDRi) organisation and 55 others sent a new letter to Didier Reynders (European Commissioner for Justice) on April 1st, 2021 to support their demand for a specific ban on biometric mass surveillance technologies.
The signatories of this letter identify three main issues and put forward proposals to address them.
Firstly, the signatories call for a specific and explicit ban on biometric mass surveillance technologies. Indeed, the letter reveals that they consider that exceptions to the prohibition of biometric data processing, as laid down in the European data protection package, are being misused. In this respect, the signatories deplore the “misuses of consent as a legal basis and the subsequent lack of enforcement”. The letter also highlights the fact that public authorities may not be respecting the standards of strict necessity and proportionality necessary for the deployment of facial recognition tools, which, according to the signatories, may lead to “entities in Member States deploying some of the most harmful uses of biometric technologies for mass surveillance purposes”. Based on these findings, the signatories are calling for the European Commission to include in its draft regulation proposal “a ban on the indiscriminate or arbitrarily-targeted use of biometric applications in public or publicly-accessible spaces (i.e. biometric mass surveillance) without exceptions, due to the fact that the many risks and harms involved make such uses inherently unnecessary and disproportionate for the aim sought”. In this document, they propose that the ban be accompanied by a new European legal instrument which ensures that “biometric mass surveillance uses are never deployed in the first place”.
Secondly, and beyond the specific call for a ban on mass surveillance, the letter calls for the establishment of red lines that limit the use of artificial intelligence, the unfettered deployment of which would otherwise threaten fundamental rights. Indeed, the signatories consider that the European Union (EU) is the appropriate entity to ensure the development of a trustworthy approach to artificial intelligence. According to the civil societies, the EU must set an example by ensuring that innovations in artificial intelligence are always developed in a way that respects fundamental rights and freedoms.
Finally, the signatories of the letter call for the EU to adopt an approach that ensures “explicit inclusion of marginalised and affected communities in the development of EU AI legislation and policy”. Indeed, it is underlined in the letter that “the unfettered development and deployment of biometric technologies has severe consequences for the human rights of marginalised people and groups, who are often disproportionately subject to discriminatory deployments of such technologies” and the signatories therefore urge the EU to distinguish its approach from that of China and the US. Thus, according to the signatories, the EU can and should ensure the respect of human rights of marginalised people and groups. Taking the General Data Protection Regulation (GDPR) as an example, the signatories argue that such an approach can be advantageous for the EU and that this is not incompatible with the development of a competitive market.