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Elettra Currao

Facial recognition and fundamental rights: setting the balance

Issue 5/2021

Abstract. The increasingly widespread use of biometric technologies as facial recognition software has prompted profound concerns and surprising reactions that require a careful analysis of benefits on the one hand and risks protecting fundamental rights on the other. This contribution addresses the equilibrium between innovation and protection of rights, also considering the use of artificial intelligence to prevent and suppress illegal activities. In the end, the use of these tools in the criminal trial will be questioned.

This article was submitted anonymously for evaluation by two expert reviewers, with a positive outcome.


SUMMARY: I SECTION: Biometrics and facial recognition. – 1. Facial recognition and biometrics: definitions and purposes. The biometric data. – 1.1. Introduction. – 1.2. Biometrics. – 1.3. Facial recognition between public and private sectors. – 1.4. Operating procedures: Real-Time or Pre-recorded broadcast. – 2. Application issues: identification of the right regulatory framework. – 2.1. The EU Regulation 679/2016 (GDPR) and the EU Directive 2016/680. – 2.2. Soft law instruments: the European Ethical Charter and the Guidelines on the use of IA. – 3. Limits to the use of private facial recognition software by US police authorities: Amazon’s suspension of Rekognition and the Facial recognition principles developed by Microsoft. – II SECTION: Facial recognition and fundamental rights. – 1.1. Right to Human dignity. – 1.2. Right to privacy and personal data protection. – 1.3. Right to identity and personal image. – 1.4. Right of self-determination. – 1.5. Right to an effective remedy and to a fair trial and Right to access. – 1.6. Freedom of assembly and of association and of expression and information. – 1.7. First conclusion. – III SECTION: Facial recognition and criminal law. – 1. The “former” problem of identifying the offender: why is this relevant again today? – 2. Work in progress: the application of facial recognition to Criminal Law. – 2.1. SARI Enterprise of the Italian Ministry of Internal Affairs. – 2.2. The projects of Austria and Denmark. – IV SECTION: Perspectives de iure condendo. – 1. Substantive Criminal Law. – 1.1. No punishment without law: the need to identify a legal basis for when and how and the prevision of internal control system. – 1.2. The need to identify a limited number of crimes. – 1.3. The principles of subsidiarity and extrema ratio. – 2. Criminal procedural law. – 2.1. Is the identification of the offender acquired through facial recognition systems scientific proof? – 2.2. Definition of procedural safeguards: the proposed US federal law of the Facial Recognition Technology Warrant Act 2019. – V SECTION: Conclusion.


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