2023-06-12 16:00:53
The senators examine from 4 p.m., Monday, June 12, a bill relating to biometric recognition in public space. If they say, with this text, « pose[r]prohibitions and defined[r] principles relating to the use of these technologies” in order to “to obstruct a surveillance society”parliamentarians are also paving the way for an unprecedented field of experimentation for controversial technologies, such as facial recognition.
What does the law say today?
We generally talk about biometric recognition to talk about the different technologies used to identify a person based on their physical or biological characteristics. Fingerprints or facial recognition from a photograph or video are among them.
Considered sensitive by the General Data Protection Regulation (GDPR), biometric data is subject to increased legal attention. They can only be processed with the consent of the persons concerned or “on the basis of an important public interest”, as recalled by the National Commission for Data Protection (CNIL) and a recent Senate report. Facial recognition without the consent of the person concerned, for example, is therefore in principle prohibited and its use must be authorized by law or decree.
What changes does this new text propose?
The text presented to the Senate aims to create a legal framework for experimentation, for three years, of biometric recognition by judicial investigators and intelligence services. This trial period should give rise to a government report discussing the possibility of perpetuating or not these uses.
The text distinguishes between the use of a posteriori biometric recognition, that is to say, in the case of facial recognition, on images collected and then processed, and real-time biometric recognition, which is more sensitive. The use of the latter will be limited, for the intelligence services, to the fight against terrorism. As for the judicial investigators, they will be able to call on it for the same reasons as well as for cases of child abduction or to identify suspects in cases of particularly serious crime. In these two cases, the authorizations issued – either by the Prime Minister or by the prosecutor or examining magistrate – will only be valid for forty-eight hours.
With regard to biometric processing a posteriori, it should be authorized in the context of judicial investigations for terrorism and serious facts, based on the images and data already present in the investigation file, and this with the authorization of the prosecutor. or the investigating judge. The intelligence services will be able to use facial recognition on video surveillance recordings to find a fugitive suspect in a terrorism case, by requesting one-month authorizations. This technique can also be used to identify people around the suspect if necessary.
Who initiated this law and for what purposes?
The bill, which emanates from the Senate, is carried by Marc-Philippe Daubresse (Les Républicains, LR) and Arnaud de Belenet (Centrist Alliance), two elected officials who had already submitted an information report on the subject, adopted at the unanimity in committee on May 10, 2022. At the time, as the Senate website reminds usthey observed “a lack of specific legal framework and collective ethical reflection”.
For its defenders, the text presented on Monday therefore aims to remedy these shortcomings and “to obstruct a surveillance society”. “Paradoxically, these uses, although marginal, raise many oppositions while biometric recognition is becoming commonplace in everyday life with a multiplication of individual uses”, is it defended in the argument which accompanies the bill. The rapporteur of the text, Senator Philippe Bas (LR), has also argued in the law commission one “absolute prohibition regime” facial recognition “would be in vain”.
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In addition to regulating a system and a market “who risks escaping us”argue the senators, the law provides for“grant the public authorities the exceptional authorization to use technologies that are certainly intrusive, but which cannot, in the context of the upcoming organization of the Olympic and Paralympic Games by our country, be left to the goodwill of commercial players”.
What is the link with the experiment planned for the Olympic Games?
Promulgated in May, the law relating to the organization of the Olympic and Paralympic Games (JOP) 2024 also allows for large-scale experiments. The tools involved are different, however, since this time it is algorithmic video surveillance (VSA), also known as “intelligent” video surveillance, i.e. devices which, thanks to algorithms coupled with video images, allow to detect behavior considered suspicious, crowd movements or the presence of people in a prohibited area. The State must launch a public tender to determine which tools developed by private companies will be used.
In theory, the “JOP law” therefore concerns neither biometric data in general, nor facial recognition in particular. This is why Senator Marc-Philippe Daubresse had also tabled an amendment, mentioning it in the law commission, before finally withdrawing it. However, during the debates, some elected officials considered that the analysis of people’s behavior and movements already corresponded to the processing of biometric data. “The algorithm will make it possible to recognize people, without necessarily identifying them. Recognize means providing a description detailed enough to enable officers in the field to locate a person”argued at the time the elected Europe Ecologie-Les Verts (EELV) Lisa Belluco.
Is biometric recognition already used in France?
As early as 2019, the CNIL noted that facial recognition for authentication purposes was already used, in particular in border control systems (Parafe) and in online identity tools (Alicem).
In February of the same year, the city of Nice, fond of video surveillance, experimented with facial recognition technology during its carnival by testing several fictitious scenarios, such as the identification of fleeing or dangerous people in a crowd. In his report, consulted at the time by The crossthe municipality said it was very satisfied with the results of this experiment.
Furthermore, the Code of Criminal Procedure allows you to save in the criminal history processing file (TAJ) photographs “allowing the use of a facial recognition device”. This text, strongly criticized, had been attacked by the association for the defense of online freedoms La Quadrature du Net but validated in 2022 by the Council of State.
Who opposes algorithmic and biometric surveillance?
During the debates around the “JOP law”, several organizations defending rights and freedoms, such as Amnesty International, Human Rights Watch or La Quadrature de Net, expressed concern about the precedent created by this law in terms of surveillance, which they consider “unjustified and disproportionate in the public space”. A petition launched with elected officials against the two articles of the law which authorized the experiments of “intelligent” surveillance collected in February many signatories among EELV and the New Popular Ecological and Social Union.
The bill which arrives in the Senate on Monday has not yet specifically triggered such a movement of opposition. Its examination takes place in any case only a few days before the adoption in plenary session in the European Parliament of legislation on artificial intelligence (“AI Act”). The text, which comes to border and prohibit a certain number of practices in terms of biometric surveillance, will have to be taken into account by French legislators.
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