Key Contact: Sean McElligott – Partner Anne Bateman – Partner

On 25 May 2022, Minister for Justice, Helen McEntee announced a proposal that would allow Gardaí to use facial recognition technology (FRT) when investigating criminal offences. The provision would operate as an amendment to the proposed Garda Síochána (Digital Recording) Bill, an act that the Minister hopes to introduce at the end of the month. So far, the General Scheme of the Digital Recording Bill aims to provide a legal basis for law enforcement use of body cameras, along with other recording devices such as mobile phones. The proposal would also expand the use of Closed-Circuit Television (CCTV) footage and automatic plate recognition technology.

Emphasizing the role of technology in enhancing law enforcement practices, Minister McEntee noted that employing FRT could revolutionize how Gardaí manage child exploitation, missing persons, and murder cases. The technology would also help exonerate innocent parties by revealing their whereabouts at the time of the crime. Once enacted, the Bill would allow Gardaí to input an image of a perpetrator into a system that would then provide instant access to images of the suspect, or those that resemble the suspect, taken in public places. This process would enhance the speed and facility with which Gardaí could locate and identify suspects.

The Scheme has already been the subject of significant criticism from data protection and human rights perspectives, notwithstanding the fact that it will include a number of safeguards.  For example, rigorous human rights and data protection impact assessments must be completed before the legislation can be finalised and the Bill would need to comply with the General Data Protection Regulation & Data Protection Act (GPDR). While the current Scheme does not include the addition of FRT, it is likely that its use would be limited to cases where there is a risk to national security or an immediate threat to life.

However, what about the proposed EU AI Act (AIA) and its possible impact on the Scheme?  You will recall that the AIA will create a uniform legal framework for artificial intelligence among Member States. The AIA seeks to encourage innovation while providing safeguards against potential infringements of fundamental rights. While biometric identification systems are considered “high-risk” under the Act, Member States could authorise law enforcement use of FRT if they adhere to certain stipulations. Under the AIA, law enforcement can employ FRT if its use is “strictly necessary” for finding missing persons, preventing threats to life, physical safety, thwarting terrorist attacks, or identifying or prosecuting those suspected of certain offences  The AIA also requires law enforcement officials to weigh the consequences of each use of FRT against the probability its use would prevent future harm. Lastly, individual use of the technology would require the consent of a judiciary or supervisory authority unless circumstances necessitated urgency. As such, national legislation would have to provide a legal process through which law enforcement officials could receive consent for each individual use of this technology. If European Parliament passes the AIA, then the Digital Recording Bill would be required to comply with this framework.

However, the whole issue remains in a state of flux and the current draft of the AIA will change – the current text has amassed thousands of potential amendments from each political group within the European Parliament. Members of the European Parliament are expected to debate amendments to the AIA in the coming months, and criticism from other governing bodies could influence these changes. Responding to the draft of the AIA, the EDPB and EDPS called for a total ban on FRT in publicly accessible spaces “in any context”.  The agencies also argued that data protection authorities should be given a more prominent role in enforcing the provisions since data protection and artificial intelligence are so closely intertwined. If amendments to the AIA take on board these concerns, then the EU AI Act could enact stricter prohibitions on the use of FRT and how it is supervised.

Since the proposal for the Digital Recording Bill will not be published until the end of the month, the extent to which Gardaí will be able to use FRT is unclear but will likely be limited to serious offences. However, given the AIA, the circumstances and facility with which this technology can be used under the Digital Recording Bill may be subject to stricter limitations.

For further information in relation to this article please contact partner Sean McElligott and partner Anne Bateman.