Prohibitions § 9.3.3

Article 5(1)(h)(ii) AI Act lists the second scenario in which the use of real-time RBI in publicly accessible spaces for law enforcement purposes is allowed , subject to strict necessity and the conditions established in Article 5(2)-(7) AI Act the prevention of a specific, substan tial and imminent threat to the life or physical safety of natural persons or a genuine and present or genuine and foreseeable threat of a terrorist attack.

In application of Article 2 of the Charter, which guarantees the right to life, the U nion and its Member States must safeguard and, thus, protect the lives of individuals. The criteria in Article 5(1)(h)(ii) AI Act concerning the threat to life to allow for the use of real-time RBI systems in publicly accessible spaces require the existence of (1) a specific, (2) substantial and (3) imminent threat to the life or physical safety of (4) natural persons. The threat does not need to be limited to identified indiv iduals or a group, as it relates to natural persons in general.

Recital 33 AI Act clarifies that an imminent threat to life or the physical safety of natural persons may also include an imminent threat to critical infrastructure²⁰² ‘where the disruption or destruction of such critical infrastructure would result in an imminent threat to the life, or the physical safety of a person, including through serious harm to the provision of basic supplies to the population or to the exercise of the core function of the State.’ For example,²⁰³ A serious disruption and destruction of critical infrastructure ( e.g., a power plant, water supply, or a hospital) may result in an imminent threat to the life or the physical safety of a person when the re is serious harm of cessation of basic supplies to the population (deprivation of electricity or drinkable water for a long period, in a particularly warm or cold weather, etc).

What constitutes an imminent threat to life or the physical safety of natural persons is ultimately defined and assessed at the level of the Member State based on its national laws, in accordance with EU law, in particular taking into account the key elements and rationale of Article 5 AI Act. This will have to be laid down/referred to in the laws Member States must adopt to make use of the exceptions to the prohibition on the use of real-time RBI for law enforcement purposes in publicly accessible spaces.

An imminent threat to life or physical safety is a threat that can occur at any mo ment and requires ‘immediate action to be taken.’²⁰⁴ A substantial threat to physical safety relates to serious bodily injuries.

A specific threat means that the threat is clearly defined , individualised and concrete, in that it should not be hypothetical or relate to certain dangers in general. For example, the police are informed that a former student plans a deadly attack at his former university as he seeks revenge on several former classmates. The police receives information about the imminence of the attack, the targeted school, and the weapons he plans to use to execute his plans.

A specific threat needs not be intentional. Non-intentional actions could also result in a threat to life or physical safety.

This part of the second scenario described in Article 5(1)(h)(ii) AI Act is comprised of several elements: the existence of a threat of a terrorist attack and the characteristics of the threat, which must be genuine and present or genuine and foreseeable. Threat of a terrorist attack

The assessment concerning the existence and seriousness of the threat is ma de at national level when assessing the actual circumstances of a measure to be taken to safeguard national security, and more specifically, in case of a terrorist attack. The terrorist threat level is defined at national level and varies from one Member State to another. For example, the Netherlands has established five levels of threats,²⁰⁵ Belgium four,²⁰⁶ France three,²⁰⁷ and Sweden five.²⁰⁸ However, the concept of ‘a genuine and present or genuine and foreseeable threat’, as used in Article 5(1)(h)(ii), is an autonomous notion of U nion law and should therefore be assessed, in principle, independently of national definitions. The threat relates not to terrorism in general, but specifically to a threat of a terrorist attack. Characteristics of the threat: genuine and present or genuine and foreseeable

The threshold of seriousness that a threat needs to reach to allow for the use of real-time RBI systems in publicly accessible spaces for law enforcement purposes was inspired by the CJEU’s case law on data retention and passenger name record measures aimed at safeguarding national security, in particular, against terrorist attacks. According to the CJEU, in those contexts, ‘a threat to national security must be genuine and present, or at the very least, foreseeable, which presupposes that sufficiently concrete circumstances have arisen.’²⁰⁹ Prevention

Contrary to Article 5(1)(h)(i) and Article 5(1)(h)(iii) AI Act, the scenario described in Article 5(1)(h)(ii) does not specify that the use of real-time RBI is permitted to locate or identify a concrete person. Its purpose is the prevention of a particular threat. Accordingly, the scenario may also cover the use of real-time RBI to detect and follow ‘terrorists on the move’,i.e. several persons linked to the same threat, if there are concrete indications that those persons plan to commit a terrorist attack, but it is not clear where. Real-time RBI to prevent a terrorist attack in a park The police are informed that a person is running around a park looking for people to attack with a knife while he is screaming violent extremist slogans usually linked to terrorist attacks and terrorist groups. If the Member State has authorised the use of real-time RBI in the scenario described by Article 5(1)(h)(ii) AI Act , l aw enforcement authorities may use real-time RBI to identify and locate the person in and around the park to prevent the attack , provided the other conditions of Article 5(2)-(7) AI Act have been met.