Virginie Fauvel / Localtis
“The senatorial report on ‘biometric recognition in the public space: 30 proposals to eliminate the risk of a surveillance society’ proposed the inevitable: the experimentation of biometric recognition in France.” The note published on May 25, 2022 by the Observatory of Public Ethics (OEP) is very critical of the recent Senate report (see our article of May 12, 2022) which “will probably serve as a basis for a future law on the subject”. And as if it were necessary to protect oneself in advance from possible criticism, a footnote expressly mentions that “the remarks made and the proposals formulated in this note do not collectively commit the Observatory of Public Ethics and are specific to its author”, namely Raphaël Maurel, Secretary General of the OEP and Director of the Business Ethics Department.
This prerequisite being established, the author recalls that “facial recognition, which is a matter of biometric techniques”, remains a “probabilistic tool including a margin of error”. He underlines, as the senatorial report did, that “the prospect of the Paris Olympic Games in 2024 undoubtedly accelerates the process in France”. It should be noted that Raphaël Maurel regrets the terminology used by the senators’ report: “While it announces ‘removing the risk of a surveillance company’, it finally recommends the opposite, by proposing precisely to experiment with facial recognition whose technology is undoubtedly corporate surveillance techniques.” He fears that “the report of 10 May [serve] leverage to open a door that won’t close again”.
“Can you own a technology without using it?”
More concretely, the secretary general of the OEP regrets that the report “omits a major ethical issue”. “We must first ask ourselves the question of the usefulness of this technology.” He considers “imperative not to conceive of experimentation as a prerequisite for the inclusion of facial recognition in the law, and not to seek to artificially promote the acceptability of these devices”.
And to ask the question: “Can we own a technology without using it?” He recommends not to answer it immediately in the negative, “contrary to the spirit which seems to have guided the rapporteurs of the Senate”. “As soon as biometric recognition allows the categorization of individuals, the terrifying drift towards a Chinese-style social rating society, whose relationship prescribes avoidance, becomes possible”, warns the author again.
In other words, he continues “in the face of the risks identified for our societies and our freedoms, the question of the usefulness of facial recognition should be the basis of any reflection on a possible legislative approach”. And to add that asking this question is not enough: “you still have to allow yourself to answer it in the negative and to draw the consequences”. “For reasons of opportunity, freedoms and digital sobriety, the public authorities must imperatively be able to avoid opening the door to biometric recognition in the public space”, argues Raphaël Maurel, citing the atomic bomb and GMOs. as examples of “technological advances” that “have raised ethical questions”.
“Experimentation should not set a precedent”
The secretary general of the OEP insists on the need “to consider the experiment as a real test and not as a prerequisite for the integration of the device into French law”. And to emphasize that “the debates reproduced in the report underline, in this respect, the problem of addiction caused by experimentation, which we know from experience is generally followed by codification”. “It is therefore necessary to take the necessary measures now to guarantee that the experiment can lead to a positive verdict, but also lead to negative conclusions and therefore to a ban on facial recognition”, recommends Raphaël Maurel. Concretely, “any installed devices must thus be able to be uninstalled and all the data collected can be destroyed, without the possibility of reuse or transfer, by private or public persons, in any way whatsoever”.
Citizens’ convention for the ethical use of digital technologies
At the end of a fairly pointed argument, the OEP formulates “seven proposals for reform”. Above all, he encourages “creating the conditions for public debate around the advisability of facial recognition” through in-depth studies preceding parliamentary work, while “clearly providing for the possibility of not modifying the law”. He also proposes “to establish a Citizens’ Convention for the ethical use of digital technologies” in order to reconcile “citizens with the legislative power”. He also recommends “making prohibition the real principle”. He therefore believes that “Parliament could first refrain from modifying positive law, by not adopting any reform”. “The law of facial recognition would therefore remain governed by the GDPR, which allows few derogations from the principle of prohibition. The legislator could, alternatively, adopt the principle of prohibition by limiting derogations to what is strictly necessary”, details the author. On the contrary, he wishes that “the derogatory principle of the ‘strict necessity’ of the device” be adopted. Finally, the OEP would like to “prohibit the private use of facial recognition” (recommendation no. 5), “centralize authorizations to use facial recognition” (recommendation no. 6) and “secure data from the biometric recognition” (recommendation no. 7).
While the Borne government does not have a full-fledged “digital ministry”, it remains to be seen how the recommendations of the secretary general of the OEP will be heard.