A study into the use of biometric and behavioral mass surveillance, particularly in public spaces, examines whether, generally in the name of security, the European Union is heading beyond the rule of law towards the ending of liberal democracy as citizens’ rights are ignored at the member state and bloc level. By not choosing a moratorium on the use of biometric technologies pending a top-level review of surveillance practices, the EU will effectively choose totalitarianism, with self-censorship and wide-ranging exemptions to the use of artificial intelligence in surveillance along the way, according to a recent article published in the website of Biometricupdate.
“Impacts of the Use of Biometric and Behavioural Mass Surveillance Technologies on Human Rights and the Rule of Law” published by the Greens/European Free Alliance, a grouping of European Parliament parties, goes back to the 1950 adoption of the European Convention on Human Rights which has as an aim the prevention of a return to totalitarianism in Europe “through a mechanism which discourages states from favouring order and security over the preservation of freedoms”.
The paper claims to be an objective study based on privacy impact assessments into whether the rule of law and human rights are under threat from biometrics and behavioral mass surveillance, “understood as technologies that include the use of biometric identifiers and are likely to enable mass surveillance, even though they are not implemented for that particular purpose”.
The study finds that member state and EU attitudes towards mass surveillance has put at risk these liberties. “Public authorities justify the implementation and further development of these [biometric and behavioral] technologies as a need that requires no discussion, in order to fight terrorism and ensure security. However, they have so far failed to establish any evidence of efficiency and added-value, whereas biometry is a highly intimate and identifying tool.”
The author considers the EU is playing a crucial role in the development of the technology by requiring biometric ID cards and seeking to favor technical convergence of European systems using biometrics. “This EU policy expands to the Western Balkans. This approach is sometimes presented as the result of pressure from the United States of America to make the recourse to biometry a priority objective in the fight against terrorism. However, authors show that actually the European Union made choices that widely exceeded the demands made by the USA and rather seem to serve an EU domestic policy aiming to develop a registry of fingerprints and facial images of EU citizens and residents.”
The report finds that government communications around biometric identification and recognition presents the technology in a favorable, progressive light while creating an atmosphere of fear around security. Ultimately, security is “asserted as a natural need that is beyond discussion in its principle, and which is inherent to freedoms or supersedes them. This approach tramples on fundamental principles that underpin the European legal system, in which security is conversely an exception to freedom, subject to strict conditions.”
Meanwhile the EU has required states to collect biometric identifiers for migration control. Its proposed Artificial Intelligence Act also allows for exceptions to potential bans on the use of AI in surveillance whether live or recorded, public or private, if for national security purposes.
“The ECtHR [European Court for Human Rights] stated many times that there must be a link between the conduct of the persons whose data is collected and the objective pursued by the legislation that provides for the collection of such data, in order for surveillance to be authorised. No argument can be put forward against this rule in a political democracy governed by the rule of law. Internal security is not a sufficient justification, as stated by the ECtHR.”
This brings the author to find that self-censorship is the main risk to the right to freedom of expression and to freedom of assembly as biometric identifiers are registered in databases and captured by surveillance – without bringing any security.
Biometric identification “only enables, eventually, the identification of persons already suspected of preparing an offence. It might be the reason why biometric research focuses on prediction. However, in a democratic society governed by the rule of law, the restriction of a freedom based on a prediction of behaviour is not admissible. It constitutes, per se, a violation of the right to hold a belief, of the freedom of self-determination, and of the freedom of free will. In the end, it constitutes a violation of human dignity.
“This principle also applies to the industry.”
The study covers the issues around the theft of identifiers, biases and the contradiction of using discrimination on ethnic and social characteristics in surveillance to fight terrorism in the name of European values such as non-discrimination.
The findings lead to the renewed recommendation to declare an immediate moratorium on the technology and practices that impact on rights including the right to human dignity and to resist oppression. As well as a ban on the collection and processing of biometric identifiers by state and EU institutions, the paper also calls for a ban on the “collection and processing, by private entities, of biometric identifiers without the freely given, specific, explicit, and informed consent of the people involved. This covers the collection of photographs and other biometric identifiers that are publicly available or available on the Internet.”
The Greens/EFA have previously mapped surveillance projects in the EU and criticized previous proposals for controls on facial recognition for not going far enough.
The latest study concludes that the member states of the EU find themselves confronted with a crucial political choice: “The choice to rediscover the principles and values of the rule of law and the respect of human rights, or the choice to stray from this path and go down the road to totalitarianism.”