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The European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) announced on June 21st, 2021 that they have approved a joint opinion on the European Commission's Proposal for a Regulation laying down harmonised rules on artificial intelligence (AI).

Entities want to ban facial recognition through the use of AI in a public space. They claim that deploying remote biometric identification in publicly accessible spaces means the end of anonymity in those places. Applications such as live facial recognition interfere with fundamental rights and freedoms to such an extent that they may call into question the essence of these rights and freedoms.

This calls for an immediate application of the precautionary approach. A general ban on the use of facial recognition in publicly accessible areas is the necessary starting point if we want to preserve our freedoms and create a human-centric legal framework for AI. The proposed regulation should also prohibit any type of use of AI for social scoring, as it is against the EU fundamental values and can lead to discrimination.

The opinion of the two entities also defends the following positions:

  1. the ban on AI systems using biometrics to categorize individuals into clusters based on ethnicity, gender, political or sexual orientation, or other grounds on which discrimination is prohibited;
  2. the use of AI to infer emotions of a natural person is highly undesirable and should be prohibited, except for very specific cases, such as some health purposes, where recognition of the patient's emotions is important; and
  3. the use of AI for any type of social scoring should be prohibited.

The fact is that facial recognition, despite the undeniable appeal of the development of technology, has generated a lot of controversy on the part of scholars on the subject, regulators and companies operating in this segment.

One of the giants, Google, establishes in a document about facial recognition that face-related technology:

  1. needs to be fair and therefore should not reinforce or amplify existing biases, especially where this might impact underrepresented groups;
  2. it should not be used in surveillance that violates internationally accepted norms; and
  3. it needs to protect people’s privacy by providing the right level of transparency and control.

On the other hand, Google’s own document exemplifies the benefits of facial recognition, such as allowing only the right person to have access to sensitive information meant just for them, or even helping in the fight against trafficking of minors.

Google has five issues that should be considered in products and applications involving face recognition:

  1. intended use;
  2. notice, consent and control;
  3. data collection, storage and sharing;
  4. model performance and design; and
  5. user interface.

The crucial issue of a technical nature, however, is the difficulty of establishing criteria to determine whether the software or equipment that performs facial recognition is accurate or not. Despite the technical aspects, the relevant question that arises is whether the State would have the right to track someone in public spaces, being able to establish itineraries and end up exercising an oppressive control over a particular individual.

In any case, the positioning of European entities causes concern in the area of security, especially in places where people are trying to identify fleeing lawbreakers, such as airports and bus stations. A total ban will certainly be a heavy blow to European security forces.

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