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19 Dec 2023

Article by:Amirah Ajazand Tomas Higginson

The EU has introduced measures to ban the use of real-time data without the authorisation of the judiciary, including imposing limits on the use by the police of AI biometric surveillance.

Unwarranted use of AI biometric surveillance will soon be banned in EU Member States. The European Union Parliament passed the EU AI Act on 8^th December 2023, amid concerns over the wider human rights implications of artificial intelligence.

AI Biometric Surveillance allows for the live analysis of visual data by AI platforms. Individual biometric features such as walking gait, often too subtle for a human to assess in real-time, can be picked out by artificial intelligence programs to identify suspects.

The central anxiety for those opposed to biometric surveillance is that it is an excessive and unreliable extension of policing. Noting that artificial intelligence programs sometimes regurgitate prejudiced views found in their source matter, campaigners worried that this prejudice could transfer to those flagged as potential suspects. Thus, they argued, AI surveillance risked exposing those with protected characteristics to unfair procedure. On a jurisprudential note, some officials expressed a general reluctance to outsource suspect identification to artificial intelligence instead of human decisionmakers.

With broad regulatory scope, the Act was of course contentious. On the area of biometric surveillance, balancing the twin priorities of safeguarding the public and affording individual freedoms meant compromise between stakeholders. As a result, the AI surveillance can still be used but only with prior authority and for the gravest suspected crimes, including human trafficking and terrorism.

Since leaving the European Union, the UK is not automatically or directly bound by new EU legislation. As such, the AI Act does not apply in the UK. On Dec 6^th Tony Eastaugh was appointed as the UK’s new Biometric Surveillance Camera Commissioner. Keeping with the Government’s outward tough messaging on criminal behaviour, in August of 2023 it released plans to expand AI surveillance efforts to aid policing.

Eastaugh’s predecessor, Professor Fraser Sampson, cautioned against rapid introduction of AI surveillance in a committee hearing in Parliament. Though he accepted that the technology would improve its veracity with time, he recalled how he spent several months handling a case of mistaken identity in 2021.

A motorist triggered an AI surveillance camera in Bristol, automatically issuing a Fixed Penalty Notice. The AI assessed the image, picking out the phrase ‘knitter’ from the motorist’s homemade knitted jumper. Regrettably, the AI mistook the phrase ‘knitter’ for ‘Knight’. Mr Knight of Surrey was not at all pleased to receive a Fixed Penalty Notice for an offence he never committed. Sampson however reflected that the use of AI in sorting the vast bank of images within national databases is an efficient measure, but warned that with any AI procedure there ought to be a human review.

There are fears that law enforcement agencies may become more reliant upon “algorithms” rather than policing in the traditional sense, which is led by either actual or circumstantial evidence.

The role of Biometric Surveillance Camera Commissioner will be abolished by the Data Protection and Digital Information Bill. The Bill is before the House of Lords and is set to pass before the next election.

For more information contact ABV Solicitors on 0344 587 9996.