The prohibition in Article 5(1)(h) AI Act applies to the use of RBI systems for law enforcement purposes, irrespective of the entity, authority, or body carrying out thelaw enforcement activities.
Law enforcement is defined in Article 3(46) AI Act as the ‘activities carriedout by law enforcement authorities or on their behalf for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including safeguarding against and preventing threats to public security.’ Thesepurposes are the same as those listed in Article 1 LED.196 Thus, any interpretation of those purposes in relation to LED may also be relevant for the purpose of interpreting the notion of ‘law enforcement’ used in the AI Act.
Law enforcement purposes comprise the investigation, detection, and prosecution of criminal offences. They also comprise activities in relation tothe prevention of criminal offences, including safeguarding against and the prevention of threats to public security, before any crime has actually been committed. For instance, the police may take ‘coercive measures at demonstrations, major sporting events or riots’ in the context of crime prevention.197 Finally, those activities comprise the execution of penalties, such as the execution of sentences.
According to Article 3(46) AI Act, law enforcement activities may be performed by law enforcement authorities or on their behalf. Law enforcement authorities are further defined in Article 3(45) AI Act in the same manner as national competent authorities are defined in the LED.198 That definition covers law enforcement authorities and entrusted bodies or entities (which may be private parties): (a) any public authority competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security; or For example, such public authorities include police authorities and criminal justice authorities (such as prosecutors) when they carry out a law enforcement task. (b) any other body or entity entrusted by Member State law to exercise public authority and public powers for the purposes of the preventio n, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;
Under the AI Act other entities, bodies, or persons, may exercise l aw enforcement activities after being entrusted by Member States law entrusting them public authority and public powers for the purposes listed above.
‘On behalfof’ means that a law enforcement authority has delegated the performance of a law enforcement activity (or part of it) to another entity or person, including private parties, or has requested in specific cases another entity or person to act to support law enforcement activities. In both cases, the law enforcement authorities must instruct on all major aspects and supervise the other entity, as this requirement is inherent to the notion of acting ‘on behalf’ of a person. Delegation of tasks to other bodies may include, for example,
- Public transport companies requested by law enforcement authorities to ensure security on the public transport networks under their instructions and supervision.
- Sports federations requested by law enforcement authorities to act under their instructions and supervision to provide security at sporting events.
- Banks that are requested by law enforcement authorities to conduct certain actions to ‘counter certain crimesin specific cases’ under the instructions and supervision of law enforcement authorities. These activities fall within the definition of “for the purpose of law enforcement” since those entities act ‘on behalf’ of law enforcement authorities. If those entities act on their ‘own behalf’when detecting and countering crimes (such as fraud , money laundering), they will not be considered tofall under the prohibition ofArticle 5(1)(h) AI Act.
Only when those other bodies or entities have been entrusted with a specific law enforcement task will their activities fall under the definition of ‘law enforcement’.