Prohibitions § 9.3.4

Article 5(1)(h)(iii) AI Act allows the real-time use of RBI in publicly accessible spaces for ‘the localisation and id entification of a person suspected of having committed a criminal offence, for the purpose of conducting a criminal investigation or prosecution or executing a criminal penalty for offences referred to in Annex II and punishable in the Member States concer ned by a custodial sentence or a detention order for a maximum period of at least four years.’ Annex II AI Act provides an exhaustive list of serious crimes for which theuse of real-time RBI may be authorised for the aforementioned objective. Those criminal offences are:

• terrorism,
• trafficking in human beings,
• sexual exploitation of children, and child pornography,
• illicit trafficking in narcotic drugs or psychotropic substances,
• illicit trafficking in weapons, munitions or explosives,
• murder, grievous bodily injury,
• illicit trade in human organs or tissue,
• illicit trafficking in nuclear or radioactive materials,
• kidnapping, illegal restraint or hostage-taking,
• crimes within the jurisdiction of the International Criminal Court,
• unlawful seizure of aircraft or ships,
• rape,
• environmental crime,
• organised or armed robbery,
• sabotage,
• participation in a criminal organisation involved in one or more of the offences listed above.

A Member State may authorise the use of real-time RBI in publicly accessible spaces for law enforcement purposes to locate and identify a suspect of a criminal offence to conduct a criminal investigation, prosecute that person for the crime committed, or execute an existing sentence.

Article 5(1)(h)(iii) AI Act covers two categories of individuals: suspects and perpetrators. A suspect is a person with regard to whom there are serious grounds for believing that they have committed a criminal offence , and sufficient evidence of that person’s involvement in the offence has already been gathered.A perpetrator is a person who is accused or convicted of having committed a criminal offence . The same conditions (crime listed in Annex II and maximum punishment of at least four years) apply to locate or identify the accomplice of the crimes listed in Annex II AI Act.

Only serious crimes justify the use of real-time RBI systems in publicly accessible spaces for law enforcement purposes.

The first five offenceslisted in Annex IIAI Act are the same as the ‘euro crimes’; listed in Article 83 TFEU, while the other offences constitute priorities for law enforcement cooperation.²¹⁰ Some of them ( e.g., kidnapping, illicit trafficking in nuclear or radioactive materials) may be linked to terrorism.²¹¹

Although all the criminal offences listed in Annex II may trigger the issuance of a European Arrest Warrant (‘EAW’) against a suspect or perpetrator, the use of real-time RBI to locate and identify a suspect for one of these serious criminal offences does not require that an EAW has been issued.

Moreover, to use real-time RBI for this purpose, the respective criminal offence must be punishable in the Member State concerned by a custodial sentence or a detention order for a maximum period of at least four years. During a busy festival in a city, police authorities deploy live facial recognition technologies to monitor the area around the festival and identify wanted individuals with outstanding arrest warrants for illegal drug trafficking and sexual offences. At different entrances to the festival, the police use live video footage of people passing in front of a mobile camera to compare their faces with a watchlist of faces of wanted individuals. First, concerning the offence types, RBI can be used in case of illegal drug trafficking. However sexual offences are not on the list of offences, unless they relate to the sexual exploitation of children, child sexual abuse material, or rape. The police are not allowed to deploy real-time facial recognition technologies in a broad, untargeted manner, i.e. in the hope of finding wanted criminal s and taking them off the streets. The case is different if the police have received a physical description with a photograph of a wanted individual that is subject to a European Arrest Warrant for drug trafficking and they have reasons to believethat he will be present at the festival. In those circumstances , deploying real-time facial recognition technologies to identify a targeted individual may be covered by Article 5(1)(h)(iii) AI Act. After a serious terror attack at a Christmas market with 12 deaths, the police uses real-time facial recognition technologies to identify the offender and to see to where he is escaping. In that context they als o use the realtime facial recognition-technologies of the nearby train station and at destination stations of the trains leaving from there shortly after the attack. In the case of a terror attack, such use can be permitted under Article 5(1)(h)(iii) AI Act.

A link between Article 5(1)(h)(i) and Article 5(1)(h)(iii) AI Act may be made for the crimes covered by the scenario described in Article 5(1)(h)(i) AI Act. While real-time RBI systems may be deployed to find a victim or a missing person, those systems may also be used to locate and identify the perpetrator or suspect of trafficking in human beings, sexual exploitation as far as it concerns children (as listed in Annex II), and kidnapping (as far as the abduction mentioned in Article 5(1)(h)(i) AI Act qualifies as kidnapping as listed in Annex II AI Act). A link may also be made between Article 5(1)(h)(ii) and (iii)AI Act: real-time RBI systems may be used to prevent a threatfalling within the scope of Article 5(1)(h)(ii) and, if that threat materialises, those systems may be used to identify/locate the perpetrator ‘on the move’.