Professor David Kaye:

I thank the committee for the opportunity to speak today. I applaud the committee’s effort to place law enforcement use of facial identification technology under the rule of law. However, generally speaking, I am concerned that the law as drafted faces fundamental defects that would render it inconsistent with Ireland’s obligations under international and European human rights law. In this statement, I want to address a few key points concerning fundamental rights that bear scrutiny, alongside our submitted comments, which offer an overview of international human rights law relevant to facial identification. Paragraph 4 and footnote 8 of the written comments identify some of my work on digital surveillance, including my role as the United Nations special rapporteur on freedom of opinion and expression. I also wish to reintroduce my colleague, Ms Hinako Sugiyama, a co-author of our submission.

Facial identification technologies deeply affect people’s lives, as the committee has already heard and already knows, especially when used in public places like streets, parks, train stations and malls. It can create anxiety about the loss of anonymity or being wrongly flagged, imposing a burden on freedom of movement and the right to assembly. Notably, this applies whether such technologies are used in real-time or on past footage. Retrospective use might even impose a long-lasting impact since it can analyse data from any time in the past. Due to this chilling effect and the state obligation to promote and protect fundamental rights, international human rights law imposes, at a minimum, the strictest constraints on, if not a prohibition of, the use of facial identification data obtained in a publicly accessible place. The rationale behind such constraint is that the rights at stake are not only rights held by individuals but are essential to democratic societies, as repeatedly confirmed by European and international human rights law mechanisms and jurisprudence.

If, notwithstanding the grave risks to fundamental rights, legislators decide to allow law enforcement use of the technology on data of publicly accessible places, any such framework must, at a minimum, ensure that such use always meets international human rights standards, namely, the requirements of legality, necessity and proportionality and legitimacy. To be more specific, at the very least, any such law would require the following: minimisation of the chilling effect by establishing a specific timeframe between data capture and use of facial identification; mandating strict checks and balances, crucially by requiring prior judicial approval and robust public disclosure; specification of which data sources are used for identification, allowing the public to anticipate police use of the technology and thus self-regulate their behaviour; and notification to the public and to individuals subject to facial identification in order to guarantee the right to effective remedies as required by international human rights law. I hope my suggestions help ensure that this law fully respects international human rights standards. I thank the committee for including me with the other experts on this panel.