The future of our fight against biometric mass surveillance

The final AI Act is disappointingly full of holes when it comes to bans on different forms of biometric mass surveillance (BMS). Despite this, there are some silver linings in the form of opportunities to oppose BMS in public spaces and to push for better protection of people’s sensitive biometric data.

By EDRi · May 1, 2024

Throughout spring 2024, European Union (EU) lawmakers have been taking the final procedural steps to pass a largely disappointing new law, the EU Artificial Intelligence (AI) Act.

This law is expected to come into force in the summer, with one of the most hotly-contested parts of the law – the bans on unacceptably harmful uses of AI – slated to apply from the end of 2024 (six months and 20 days after the legal text is officially published).

The first draft of this Act, in 2021, proposed to ban some forms of public facial recognition, showing that lawmakers were already listening to the demands of our Reclaim Your Face campaign. Since then, the AI Act has continued to be a focus point for our fight to stop people being treated as walking barcodes in public spaces.

But after a gruelling three-year process, AI Act negotiations are coming to an underwhelming end, with numerous missed opportunities to protect people’s rights and freedoms or to uphold civic space.

One of the biggest problems we see is that the bans on different forms of biometric mass surveillance, or BMS, are full of holes. BMS is the term we’ve used as an umbrella for different methods of using people’s biometric data to surveil them in an untargeted or arbitrarily-targeted way – which have no place in a democratic society.

At the same time, all is not lost. As we get into the nitty-gritty of the final text, and reflect on the years of hard work, we mourn the existence of the dark clouds – and we celebrate the silver linings and the opportunities they create to better protect people’s sensitive biometric data.

Legitimising biometric mass surveillance

Whilst the AI Act is supposed to ban a lot of unacceptable biometric practices, we’ve argued since the beginning that it could instead become a blueprint for how to conduct BMS.

As we predicted, the final Act takes a potentially dystopian step towards legalising live public facial recognition – which so far has never been explicitly allowed in any EU country. The same goes for pseudo-scientific AI ‘mind-reading’ systems, which the AI Act shockingly allows states to use in policing and border contexts. Using machines to categorise people’s gender and other sensitive characteristics, based on how they look, is also allowed in several contexts.

We have long argued that these practices can never be compatible with our fundamental rights to dignity, privacy, data protection, free expression and non-discrimination. By allowing them in a range of contexts, the AI Act legitimises these horrifying practices.

Reasons for hope

Yet whilst the law falls far short of the full ban on biometric mass surveillance in public spaces that we called for, it nevertheless offers several points to continue our fight in the future. To give one example, we have the powerful opportunity to capitalise on the wide political will in support of our ongoing work against BMS to make sure that the AI Act’s loopholes don’t make it into national laws in EU member states.

Our upcoming ‘Legal and practical guide to fighting BMS after the AI Act’ is therefore intended to inform and equip those who are reflecting and re-fuelling for the next stage in the fight against BMS.

This guide will lay out where we can use the AI Act’s opportunities to fight for better protections for our rights to exist free from BMS in public spaces. This includes charting out more than 10 specific advocacy opportunities including formal and informal spaces to influence, and highlighting the parts of the legal text that create space for our advocacy efforts.

A precedent for banning dangerous AI

We also remind ourselves that whilst the biometrics bans have been dangerously watered down, the Act nevertheless accepts that we must ban AI systems that are not compatible with a democratic society. This idea has been a vital concept for those of us working to protect human rights in the age of AI, and we faced a lot of opposition on this point from industry and conservative lawmakers.

This legal and normative acceptance of the need for AI bans has the potential to set an important global precedent for putting the rights and freedoms of people and communities ahead of the private interests of the lucrative security and surveillance tech industry. The industry wants all technologies and practices to be on the table – but the AI Act shows that this is not the EU’s way.

Ella Jakubowska

Head of Policy

Twitter: @ellajakubowska1
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