Open letter: the German government should stand up for a strong ban on biometric surveillance in the Council of EU negotiations regarding the AI Act

AlgorithmWatch and 26 other civil society organizations are calling on the German government to stand up in the negotiations on the AI Act and advocate for a strong ban on biometric surveillance as mirrored in its coalition treaty.

Position

8 November 2022

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#aiact #biometricrecognition #eu #germany

Photo by Niv Singer on Unsplash

Nikolett Aszódi

Policy & Advocacy Manager

aszodi@algorithmwatch.org

The Council of the EU, comprised by the member states, is at full speed towards an agreement on the Artificial Intelligence Act (AI Act) and is aiming to reach a general approach by early December. However, the ban in the Act on biometric identification practices which can lead to mass surveillance – in its current form – entails dangerous loopholes and limitations.

The undersigned civil society organizations welcomed Germany’s position on biometric identification in the coalition treaty, namely that biometric identification in publicly accessible spaces must be ruled out by an EU-wide legislation. The AI Act could provide a meaningful ban on biometric surveillance throughout the EU, but in order to become such instrument, the shortcomings of the provision must be corrected. We call on the German government to stand firmly behind its position and try its best to achieve a strong and meaningful ban on biometric surveillance in this final and crucial phase of negotiations.

Open letter

The official version of this open letter was sent in German.

Dear Members of the German Government,

We are addressing you on behalf of 27 civil society organizations as the negotiations on the EU Artificial Intelligence Act (AI Act) are in full swing and the EU Council will soon agree on a general approach towards it.

The undersigned organizations very much welcome the fact that the German government explicitly stated in its coalition treaty that biometric identification in publicly accessible spaces must be ruled out by an EU-wide legislation. The AI Act and in particular Article 5d of the draft could become an effective instrument for a meaningful ban with its additional legal safeguards to the already existing legal frameworks.

Regrettably, we continue to see broad gaps in the Council's latest – fifth – compromise version that would prevent a comprehensive and reliable ban on biometric identification in public spaces.

First, the prohibition in Article 5d only applies to "real-time" biometric identification systems in publicly accessible spaces.
Second, the ban is limited to law enforcement agencies or actors acting on their behalf – a restriction that would not prevent surveillance by other public and private actors and is not mirrored in the coalition treaty.
Third, the subparagraphs in Article 5d list a number of exceptions in which the prohibition should not apply which largely undermines its substance.
Fourth, the fact that the AI Act should not apply when national security is invoked by a Member State may lead to the justification of the use of biometric identification systems which may enable mass surveillance.

In other words: The ban on biometric identification in Art. 5d of the draft AI Act, in its current form, fails to prevent the multiple fundamental rights violations that this practice may entail.

We thus see a discrepancy between the position represented in the government’s coalition treaty and the position currently emerging from the Council negotiations regarding the AI Act. We call on you to once again explicitly advocate a ban of biometric surveillance in publicly accessible spaces and thus to implement this central promise of the coalition treaty in this decisive phase of the Council negotiations. A strong signal from the German government to other EU member states at this time would be central to implementing what the coalition promised last December. The ban on biometric surveillance in the AI Act will only reliably protect our fundamental rights if it is not full of loopholes. The people in Europe are counting on you.