The outgoing administration thinks it is wise to have strict rules and conditions on the use of facial recognition technology. But the government does not see an absolute ban on this technology in public spaces, as advocated by European privacy regulators. In exceptional situations, it should remain possible to use this technology in public. The government writes this in a letter to the House of Representatives.
Date October 18, 2021
Subject Cabinet response to Volkskrant report on EDPB/EDPS Opinion on AI Regulation
On June 23, 2021, your committee asked the Minister for Legal Protection for a Cabinet response to the report in the Volkskrant dated June 21, 2021 on ¨European privacy watchdog wants ban on any form of facial recognition in public places¨.(1) The Cabinet hereby sends you the requested response.
The report in the Volkskrant refers to the opinion of the European Data Protection Board (EDPB) and European Data Protection Supervisor (EDPS)(2) on the European Commission's draft AI Regulation (hereafter, ¨the draft Regulation').(3) The government has noted this with interest and shares the supervisors' concerns regarding the processing of biometric data and other systems that could cause large-scale breaches of citizens' privacy.
The government advocates strict rules and strict conditions for the deployment of technology that by its nature can easily infringe fundamental rights. Respect for these, including the protection of personal data, is already subject to an extensive legal framework in which, among other things, the processing of special personal data (including biometric data, as in the case of the deployment of facial recognition) is, in principle, prohibited.(4) Unlike the supervisory authorities, however, the Cabinet is of the opinion that there must remain room for such exceptional situations and that an infringement of most fundamental rights, such as privacy, can, in certain cases, meet the requirements of necessity, proportionality and subsidiarity necessary to justify such an infringement. The absolute prohibitions proposed by the EDPB and EDPS - where the scope for consideration disappears entirely - are not considered desirable by the Cabinet.
The government does see the draft regulation as an opportunity to further regulate and condition invasive systems. By imposing additional requirements on systems before they are put into use, unlawful violations of fundamental rights can be prevented. Radical systems to which the ban on processing special personal data does not apply, such as certain emotion recognition systems, also have the Cabinet's attention. In order to adopt a position on the regulation that is widely supported and as fully informed as possible, the Cabinet will organize a number of round-table sessions this year to discuss a number of terse and complex aspects of the regulation with experts and stakeholders, including the points to which this Cabinet response relates.
The Cabinet will explain this position in more detail. To support it, it has attached to this letter an explanation of the existing legal framework and an explanation of the relevant articles of the draft regulation.
Download the full Cabinet response here.
Download the Legal Framework here.
Footnotes
(1) https://www.volkskrant.nl/nieuws-achtergrond/europese-privacywaakhond-wil-verbod-op-elke-vorm-van-gezichtsherkenning-in-openbare-ruimte~b35c2a98/
(2) EDPB-EDPS joint opion 5/2021 on the proposal for a regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence (Artificial Intelligence Act), hereinafter : "the draft regulation".
(3) Proposal for a regulation of the European Parliament and of the Council on harmonized rules on artificial intelligence. Available at: EUR-Lex - 52021PC0206 - EN - EUR-Lex (europa.eu)
(4) Article 9(1) and (2), General Data Protection Regulation (AVG). Different rules apply to law enforcement pursuant to Directive 2016/680, which has been implemented in the Netherlands in the Police Data Act and the Judicial and Criminal Records Act. See more detail on this in Annex 1.
