Biometric recognition: the Senate wants an adapted legal framework

The Senate Law Commission released an information report on the use of biometric recognition in the public space on Wednesday. It pleads for a strict framework for the technology and delimits a few use cases that concern national security for which this technology could be used.

The rapporteurs recommend an experimental law for a period of three years. This framework would make it possible to define “the purposes for which biometric recognition could be the subject of new experiments by public actors or in spaces open to the public”.

If experiments have already taken place in the past, such as in Nice or in the Paris metro during the Covid crisis, none was intended to be permanent.

Technology reserved for exceptional cases

Among the authorized exceptions, the rapporteurs distinguish two cases: biometric identification “a posteriori” or “in real time”. With regard to a posteriori identification, the mission proposes to allow the use of biometrics in police files, within the framework of judicial investigations or intelligence operations. It also encourages, on an experimental basis, the search for perpetrators or potential victims of serious crimes, as well as the use of these techniques to identify wanted persons.

With regard to biometric identification in real time, the senators specify that this has a “particularly exceptional” character. The mission provides for three exceptions in the context of judicial investigations, in the administrative framework with a view to securing major events or sensitive sites against the terrorist threat, and, finally, in the event of imminent threats to national security.

The CNIL would be systematically consulted for any deployment of public and private uses, recommend the senators. They also recommend that the role of the CNIL be reaffirmed, so that it exercises a role of “policeman of biometric recognition” and that it conducts controls also a posteriori of the uses.

Furthermore, the rapporteurs recommend the creation of a national inventory of each authorization received, to maintain an overall view of the use of biometric recognition techniques.

Red lines

If the report delimits a framework for future experiments, the Senate law commission wants first and foremost to set “red lines” beyond which “no use of biometric recognition could be admitted”, hammer the senators. The rapporteurs clarified during a press conference held on Wednesday that it “is not a question of general surveillance of everyone all the time”, but that “the few limited cases are specific case”. The rapporteurs are opposed, for example, to the use of easy recognition near a demonstration on the public highway or near a place of worship.

Four formal prohibitions are expressed in the report: these are the prohibition of social rating, the prohibition of the categorization of individuals according to personal criteria, the prohibition of the analysis of emotions and the prohibition of real-time remote biometric surveillance in public spaces.

The senators also stress that the principle of subsidiarity must apply: this means that biometric recognition should only be used as a last resort, when no other technology is relevant.

The senators warn about the proliferation of image processing devices without the use of biometric data, such as the detection of abandoned objects. To date, the processing of images from public roads based on artificial intelligence does not have its own legal framework, they recall. The rapporteurs consider that the application of AI to images from video surveillance therefore constitutes “a change of scale in the use of video surveillance”, which is likely to infringe individual freedoms.

The Olympics in sight

Of course, the deadline for the 2024 Olympics is a concern to which the Senate is particularly sensitive. According to the rapporteurs of the law commission, facial recognition technology could be considered to monitor the holding of this major sporting event.

But this is not the scenario chosen by the government for the time being. Cédric O, the Secretary of State for the Digital Transition, hinted during a previous hearing before the Senate that the 2024 Olympics could do without facial recognition. However, the subject is not definitively settled.

With the future European Union regulation on the regulation of artificial intelligence looming, French senators, although preparing the ground for possible national legislation, recognize the need to think about technological sovereignty at the scale European. In the report, they recommend in particular entrusting a “European authority” with the task of evaluating the reliability of biometric recognition algorithms and certifying the absence of bias.

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