reconocimiento facial

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Public institutions in the EU and other third countries have joined private entities in recent days in issuing statements on authorities using facial recognition technologies in public spaces.

Since we reported the approval of the first act regulating authorities using facial recognition in the state Washington (Act SB 6280) barely three months ago, which took effect on June 11, 2020, several public and private entities have stated their positions on authorities using facial recognition.

Here is a brief review:

  • On June 8, 2020, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs published a draft report on the authorities and police using artificial intelligence in criminal law.

In this document, the Parliament (i) highlights the need for any use of an artificial intelligence tool by the authorities to be at least secure and respect the principles of fairness, transparency, accountability, non-discrimination and freedoms, the right of defense and presumption of innocence; (ii) underlines the risks of these technologies, mainly the risks of discrimination and misidentification; and (iii) calls for a moratorium on using facial recognition systems until it is ensured that these systems respect fundamental rights and the principles of necessity and proportionality and comply with the applicable regulations without causing discrimination.

  • As a result of the protests and the Black Lives Matter movement in the US, on June 8, 2020, IBM’s CEO, Arvind Krishna, sent a letter to US Congress, (i) announcing that it would stop providing facial recognition systems and programs, and that he did not tolerate the use of these systems “for mass surveillance, racial profiling, violations of basic human rights and freedoms,” and (ii) offering to work with Congress in the pursuit of justice and equality, mainly focused on three key areas: police reform, establishing policies for responsible use of technology and training. 
  • Following IBM’s example, on June 10, 2020, Amazon announced that it would prohibit the police from using its facial recognition program Rekognition for a year, while requesting strong governmental regulation to ensure its technology can be used ethically in the future. This moratorium will not affect its use by other organizations to rescue human trafficking victims and children separated from their families.
  • Also on June 10, 2020, the European Data Protection Board (“EDPB”) submitted its doubts on the legitimacy of using a service such as Clearview AI under EU or Member State law. In summary, this tool is aimed at agencies and authorities to be used to identify and monitor suspects and crime victims.

The EDPB believes that, without prejudice to further analysis, it is likely that it is not consistent with the EU data protection regime established by the GDPR, and it refers to guidelines or reports on authorities using facial recognition technology.

  • The following day, Microsoft announced that it would not sell facial recognition technology to police departments either, until there is an act regulating its use.
  • As a result, on June 25, a group of US senators announced the  Facial Recognition and Biometric Technology Moratorium Act of 2020, which will prohibit agencies from using facial recognition technologies, including technologies based on other biometric data, without Congress’s express authorization, and its use at trial if using it has breached the law.
  • Last in line was the European Data Protection Supervisor (“EDPS”), which published its opinion on the European Commission’s White Paper on Artificial Intelligence, which we discussed in this other post on June 29. It also supports the idea of a moratorium on using facial recognition and any other biometric data in public spaces on an automated basis in the European Union (including fingerprints, DNA, voice, and behavior signals) until a debate is held at European level, and the measures and legal framework necessary to ensure proportionality and to implement guarantees on the use of these systems are established.

Author: Adaya María Esteban Ruiz

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adaya.esteban@cuatrecasas.com