‘The use of ‘real-time’ remote biometric identification systems in publicly accessible spaces for the purposes of law enforcement for any of the objectives referred to in paragraph 1, first subparagraph, point (h), shall be deployed for the purposes set out in that point only to confirm the identity of the specifically targeted individual, and it shall take into account the following elements: (a) the nature of the situation giving rise to the possible use, in particular the seriousness, probability and scale of the harm that would be caused if the system were not used; (b) the consequences of the use of the system for the rights and freedoms of all persons concerned, in particular the seriousness, probability and scale of those consequences. In addition, the use of ‘real-time’ remote biometric identification systems in publicly accessible spaces for the purposes of law enforcement for any of the objectives referred to in paragraph 1, first subparagraph, point (h), of this Article shall comply with necessary and proportionate safeguards and conditions in relation to the use in accordance with the national law authorising the use thereof, in particular as regards the temporal, geographic and personal limitations. The use of the ‘realtime’ remote-biometric identification system in publicly accessible spaces shall be authorised only if the law enforcement authority has completed a fundamental rights impact assessment as provided for in Article 27 and has registered the system in the EU database according to Article 49. However, in duly justified cases of urgency, the use of such systems may be commenced without the registration in the EU database, provided that such registration is completed without undue delay.’
The use of real-time RBI systems for one of the objectives listed in Article 5(1)(h)(i) to
AI Act is subject to certain safeguards and conditions, which are detailed in Article 5(2) to Article 5(7) AI Act.
First, the use of real-time RBI systems in publicly accessible spaces for law enforcement purposes is only allowed to ‘confirm the identity of the specifically targeted individual.’ This first condition aims to balancethe seriousness of the situation and the harm resulting from not using the system with the impact of the technology on individuals’ rights and freedoms. It aims to avoid mass surveillance by targeting an individual for the deployment of real-time RBI. As a consequence, the deployment of a real-time RBI system in publicly accessible spaces for law enforcement purposes should only be authorized for targeted individuals.
The use of the expression ‘confirming the identity’ , as opposed to ‘identification’, is meant as an additional safeguard for the fundamental rights limiting the risk of indiscriminate surveillance and implies that the identification of an individual within the meaning of Article 5(1)(h) AI Act must be targ eted. That expression should be understood as meaning that the use of real-time RBI may only be initiated to search for specific individuals for which the law enforcement authorities have reasons to believe or are informed that they are victims of the crimes listed in Article 5(1)(h)(i) AI Act or are involved in one of the scenarios described in Article 5(1)(h)(ii) or Article 5(1)(h)(iii) AI Act. This means, in practice, a comparison of the data collected real-time with the data contained in the reference database. As regards the use of real-time RBI system in the scenarios described in Article 5(1)(h)(ii ) AI Act and for conducting a criminal investigation within the meaning of 5(1)(h)(iii) AI Act, law enforcement authorities do not necessarily need to know the identity of the individuals they are searching for before using the system . I f they have factual indications and information about a planned terrorist attack by a terrorist group (without knowing who will execute the plan) at a specific time and place, the RBI system may be used to identify the offender from the terrorist group, provided the law enforcement authorities have constituted a reference database containing the biometric data of the individuals forming part of the terrorist group. In all three scenarios described in Article 5(1)(h)(i) to (iii) AI Act, ‘confirming the identity’ may also include the localisation of the person in question.
Second, before using the system, the nature of the situation giving rise to the possible use, in particular, the seriousness, probability and scale of the harm for natural persons, society and law enforcement purposesthat would be causedif the system were not used, should be assessed against the consequences of the use of the system on the rights and freedoms of the persons concerned, in particular, the seriousness, probability and scale of those consequences. This should include evaluating whether less intrusive alternative solutions are available to the law enforcement authorities or entit ies acting on their behalf. For example, law enforcement authorities are prohibited from using real-time facial recognition systems in the street based on general security, crime prevention and over-crowding concerns, since that would involve the constant monitoring and surveillance of all persons, it is not limited in time , and it would therefore not meet the criteria for the exception from the prohibition laid down in Article 5(1)(h) AI Act.
The ‘ seriousness’ criterion , applied here in connection to the possible harm and consequences, implies a variation in degrees of interference with the fundamental rights at stake, which is linked to the principle of proportionality.212 Concerning the interferences with fundamental rights, some interfe rences are viewed as more serious than others.
The ‘ scale’ criterion refers , in particular,to the number and categories of persons affected by the interference (including children and vulnerable or marginalised persons).
Finally, the ‘probability’ is the likelihood that an event will occur.
The assessment of the seriousness, scale and probability of the harm and consequences should all be part of the Fundamental Rights Impact Assessment that the law enforcement authority is obliged to complete (see below) . That assessment will be concluded on a case-by-case basis.
Third, the real-time use of RBI should be clearly limited in terms of geographic scope, duration, and the targeted person. This is to ensure that the RBI system is only used when strictly necessary.
Concerning the geographic restriction, it may cover one or several geographical areas based on ‘objective and non-discriminatory factors’In . the case of biometric identification this implies that the geographic restriction applies to a clearly delineated boundary for which there are indications that the event will take place. Such a delineation should-under normal circumstances-not comprise an entire city or country, but should be more targeted.
Another safeguard relates to the personal scope of the measure, i.e. defining the categories of persons concerned . This would exclude the untargeted, indiscriminat e identification of persons, without further indications of an incident.
Finally, the time limit is a period limited to what is strictly necessary, but which may be extended in case of need in accordance with the applicable rules. The use of real-time RBI systems therefore cannot be for an indefinite or vague period of time. The period needs to be determined in light of the concrete indications that lead to the use of RBI systems.
Fourth, before deployment, the law enforcement authority deploying the real-time RBI system must have conducted a Fundamental Right Impact Assessment (FRIA) and registered the system in the EU database (except in a duly justified case).