The Future AI Act and Facial Recognition Technologies in Public Spaces: Nice to Have or Strictly Necessary?

This article discusses whether the deployment of facial recognition technologies for surveillance and policing purposes is necessary in democratic public spaces, taking into account the tests of necessity as established by the European Court of Human Rights and the European Court of Justice in interpreting the limits to the fundamental rights to privacy and data protection. The article focuses, in particular, on the rules proposed by the European Commission in the future AI Act aimed at regulating the use of Remote Biometric Identification systems (RBIs). This generic term ‘RBI’ covers multiple biometric applications, including facial recognition technologies. In its legislative proposal, the European Commission proposed banning the live use of the technologies, except in three situations. The Council agreed with the proposal, while the European Parliament proposed to ban all uses by all actors, except the retrospective use by law enforcement authorities to prosecute specific serious crimes after judicial authorisation. Using the tests developed by the two Courts and the guidance of the European Data Protection Supervisor on necessity, the article assesses whether the proposed rules on RBIs stand the legal test of necessity.