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Svenja Hahn (FDP), shadow rapporteur in the Committee on the Internal Market, has harshly criticised the subsequent changes to the agreement on "post biometric identification" as part of the European AI Act:
„It is outrageous that the Spanish Council Presidency managed to adjust the final legislative text on key points so that it no longer reflects the oral trilogue agreement. The final text is unspecific about the difference between "real-time" and "post real-time" biometric identification, which threatens to circumvent the very strict rules on real-time identification of persons that the Parliament was able to push for, against the member states. The oral agreement had foreseen the use of post real-time biometric identification only for very serious crimes, under very strict conditions, such as a prior judicial approval. Little of this remained.“
Hahn warns: „The current written text on post biometric identification is an attack on civil rights. Instead of the agreed judicial pre-approval, any administrative authority would be able to authorize the use of biometric identification systems, before or after the use. The first identification of a person would not even need an authorisation; there would be no thresholds for the severity of criminal offences. Even trivial misdemeanors could be prosecuted using facial recognition. This would be a irresponsible and disproportionate use of biometric identification technology, as we otherwise only know from authoritarian states such as China.“
Hahn is concerned that the AI Act could be used to restrict fundamental rights:
"Civil rights organisations are already warning that in countries with strict abortion laws, such as Poland or Malta, women could be pre-emptively monitored and persecuted through biometric surveillance technology. Member states can give free rein to their surveillance fantasies and track their populations unhindered. The Orbáns of the EU are rubbing their hands in glee."
Background:
In December 2023, the European Parliament reached an agreement on the AI Act with the member states under Spanish leadership. There was only an oral agreement on the section on post biometric identification. This agreement provided for:
- Downstream biometric identification is considered a high-risk application.
- Use in criminal prosecution for investigative purposes may only take place with the prior authorisation of a judge.
- Can only be used to find specific suspects in connection with serious criminal offences (Art. 83(1) TFEU).
- Identification of persons other than those specifically sought in the video footage is not permitted.
- Each operation must be reported to the data protection authority in addition to market surveillance.
- Member states can issue more restrictive regulations.
Subsequently, the Spanish Council Presidency presented a compromise text that did not reflect this oral agreement on key points. Negotiations then had to continue at technical level until shortly before Christmas. Despite criticism from Svenja Hahn due to the lack of constitutional safeguards to protect citizens' rights, the text has now been presented as an agreement.