Digital Law Up(to)date: AI and facial recognition, towards a moratorium?

On 6 October 2021, the European Parliament voted a resolution on artificial intelligence (AI) in criminal law and its use by police and judicial authorities in criminal matters (see here). It calls “for a moratorium on the deployment of facial recognition systems for law enforcement purposes that have the function of identification, unless strictly used for the purpose of identification of victims of crime, until the technical standards can be considered fully fundamental rights compliant, results derived are non-biased and non-discriminatory, the legal framework provides strict safeguards against misuse and strict democratic control and oversight, and there is empirical evidence of the necessity and proportionality for the deployment of such technologies”. 

The European Parliament reached this conclusion by balancing the benefits of using of these facial recognition systems against the risks that they create. Today, these risks are still too numerous and are not backed up by the adequate guarantees to eliminate or at least limit them.

The European Parliament is not the only institution to call for this moratorium. 

• In a report dated 13 September 2021 and entitled “The right to privacy in the digital age”, the United Nations High Commissioner for Human Rights Michelle Bachelet called for “moratoriums on the sale and use of AI systems that carry a high risk for the enjoyment of human rights, unless and until adequate safeguards to protection human rights are in place”. She also recommended imposing “a moratorium on the use of remote biometric recognition technologies in public spaces”, for the same reason. 
• The European Data Protection Board and the European Data Protection Supervisory adopted on 21 June 2021 a joint opinion on the proposal of the European Commission (EC) to regulate AI. They called for ban on use of AI for automated recognition of human features in publicly accessible spaces. 
• The Council of Europe (more precisely, the Consultative Committee of The Convention for the protection of individuals with regard to automatic processing of personal data) published on 28 January 2021 “Guidelines on Facial Recognition”, also calling for a moratorium “pending complete analysis”. 

It is interesting to put these recommendations in perspective with the mentioned proposal of April 2021 for a regulation on AI of the EC (see here). The objectives of the text are, among others, to ensure that AI systems “are safe and respect existing law on fundamental rights an Union values” and to “enhance governance and effective enforcement of existing law on fundamental rights and safety requirements applicable to AI systems”. Will this instrument, if adopted, allow these moratoriums to be lifted? The future will tell.

This article was co-authored by Edouard Cruysmans in his capacity of Professional Support Lawyer at Stibbe.