On 6 October 2021, the European Parliament (“EP”) voted in favor of a resolution banning the use of facial recognition technology (“FRT”) by law enforcement in public spaces. The resolution forms part of a non-legislative report on the use of artificial intelligence (“AI”) by the police and judicial authorities in criminal matters (“AI Report”) published by the EP’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) in July 2021. The AI Report will now be sent to the European Commission, which has three months to either (i) submit, or indicate it will submit, a legislative proposal on the use of AI by the police and judicial authorities as set out in the AI Report; or (ii) if it chooses not to submit a proposal, explain why.

The AI Report acknowledges the potential opportunities and advantages presented by the use of AI in law enforcement (e.g., FRT, speaker identification, aural surveillance (i.e., gunshot detection algorithms), social media monitoring, etc.), particularly in allowing law enforcement agencies to combat certain types of crimes more efficiently (e.g., financial crime, money laundering and terrorist financing, and cybercrime). However, the AI Report stresses the potential risks posed by AI applications, such as opaque decision-making, bias, intrusion into private lives, and challenges to the protection of personal data, human dignity, and freedom of expression and information.

To balance the opportunities and risks presented by AI, the AI Report sets out some key recommendations including (among others):

• Calling for a ban on the use of FRT for law enforcement purposes until the technical standards can be considered fully fundamental rights compliant; results derived are non-biased; the legal framework provides strict safeguards against misuse; and there is empirical evidence of the necessity and proportionality for the deployment of FRT.
• Permanently prohibiting law enforcement from using automated analysis of other human features, such as gait, fingerprints, DNA, voice, and other biometric and behavioral signals.
• Subjecting the use of biometric data to remotely identify people for law enforcement purposes (e.g., border control gates that use automated recognition) to additional requirements and safeguards.
• Banning the use of private FRT databases by law enforcement and intelligence services.
• Opposing the use of predictive policing based on behavioral and historic data about individuals or groups.
• Supporting a ban on mass-scale social scoring systems, which seek to rate the trustworthiness of citizens based on their behavior or personality.
• Emphasizing the need for human supervision and strong legal powers to prevent discrimination (e.g., human operators must always make the final decisions and subjects monitored by AI-powered systems must have access to remedy).

In parallel to the EP’s vote on the AI Report, in April 2021, the European Commission proposed a Regulation laying down Harmonized Rules on Artificial Intelligence (“AI Regulation”) (see our previous blog post here). The proposed AI Regulation contains specific provisions on the use of real time remote biometric identification systems by law enforcement authorities. The concerns raised in the AI Report indicate the positions the EP is likely to take in upcoming negotiations with the European Commission and the Council on the AI Regulation.

The use of AI and FRT by law enforcement is already subject to regulation under data protection law regimes, and is being closely examined by government and data protection authorities around the world. Some developments we have covered in our previous blogs include:

• The UK’s Information Commissioner’s Office (“ICO”) published its opinion on the use of live FRT by police forces (see our previous blog post here).
• The French Supervisory Authority (“CNIL”) issued strict guidance on the use of FRT at airports (see our previous blog post here) and general guidance on the use of FRT (see our previous blog post here).
• Washington state in the U.S. passed a bill that regulates state and local government agencies’ use of facial recognition services (see our previous blog post here).

We will continue to closely monitor the EU’s regulatory and policy developments on AI and FRT and will be updating this site regularly – please watch this space for further updates.