At a time when ad hoc legislation on AI is being negotiated at the European level, the French Senate published on May 10, 2022, a report proposing regulations on biometric recognition in public spaces. The purpose of this report is to put forward a framework for facial recognition experimentation and to reinforce French and European technological sovereignty.
Although the permanent use of Facial recognition in public spaces is very scarce in France, there is a need to establish red lines because certain facial recognition systems can pose significant risks to people’s fundamental rights and freedoms.
The report recommends that a law on FR experimentation should consider which biometric recognition uses are relevant and/or efficient. Over a period of three years, the government and Parliament will assess the outcome of the experiment and, if necessary, reframe legislation according to the results obtained. Nevertheless, the senators recognise that the public’s acceptance of biometric recognition is critical to biometric recognition FR systems being deployed in public spaces.
To this end, the report proposes that a committee be created, made up of scientists and ethics experts, to assess the efficiency of each experiment. The results would then be made available to the public in a transparent manner.
According to the members of the Senate, the experimentation with biometric recognition technology should adhere to three general principles:
- Subsidiarity: facial recognition should only be used when truly necessary. This principle should be applied systematically (see proposition n°4).
- Transparency: people should be informed that this technology is being used so that they are not subjected to it without their prior knowledge. Furthermore, proposition n°6 adds that information about the FR deployment must be “clear, understandable and easily accessible”.
- Systematic human control: according to the fifth proposition, the use of facial recognition must remain an aid to human decision-making (Proposition n°5).
In addition to the above principles, the report highlights the fact that four uses of biometric technology should be prohibited:
- Social rating: This prohibition follows the path of the European Commission’s AI regulation proposal. The senate asserts that both private and public actors should be prohibited from using biometric technology for this purpose.
- Categorisation of individuals: The report proposes that categorisation of individuals, based on ethnic origin, gender, and sexual orientation, should be banned, except when carried out for scientific research purposes.
- The analysis of emotions, except for scientific research or health purposes.
- Real-time remote biometric surveillance in public spaces: this probably constitutes the most important red line in terms of avoiding the risk of a surveillance society.
- The report also focuses on access control systems and puts forward various proposals for the legal framework on experimenting with these systems. For example, biometric authentication technology could be used to secure access control for some public events. However, appropriate guarantees must be facilitated, such as the existence of a viable alternative, and human control, or the deletion of collected data.
As regards the prohibition of real-time remote biometric identification, the senators provided for three exceptions:
- The searching and tracking of a person within a geographically and temporally limited perimeter. This concerns perpetrators of major offences, such as those that commit crimes against the personal and moral integrity of people, individuals wanted by the justice system or missing persons.
- The security at major events, especially where a terrorist threat is possible. The deployment should also be geographically and temporally limited.
- And finally, for intelligence purposes, where there is an imminent threat to national security.
The role of private companies is stipulated clearly: the senators affirm that private use of biometric recognition technology should be limited and based on individual consent, unless ‘duly justified’ exceptions are met. The senators even go a step further by affirming that identification based on biometric data in real or delayed time by private actors should be prohibited.
In conclusion, this report invites the French Government to consider this matter, in particular with regard to the next 2024 Paris Olympic Games. It also demonstrates France’s desire to contribute to the debate concerning the upcoming proposals on European regulation of AI, as these are currently being negotiated, with many actors expressing their positions, especially on technological sovereignty.