Our legal action against the use of facial recognition by the French police

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In August, we filed a complaint before the Conseil d’État (France’s highest administrative court) against provisions of the French code of criminal procedure which authorize the use of facial recognition to identify people registered in a criminal record police file – called “TAJ” for “Traitement des antécédents judiciaires” – by the police

This database contains 19 millions files and more than 8 millions images of people. Thanks to this database, the French police has been routinely using facial recognition on the streets for many years, with no justification, nor legal framework. It is now time to end this practice

We alreadyspoke about it last year: the French government is trying to make us believe there should be a national public debate on facial recognition. However, facial recognition is already well set up: the city of Nice experimented last year a facial recognition program on its street. In French stations and airports, automated entry gates called “Parafe” are already in use with facial recognition. And it will be the cornerstone of the new digital identity program called “Alicem”.

This deployment is even more visible with the TAJ criminal file. This file contains, beside an outstanding number of information, images of people “involved” in a police investigation : guilty individuals, but also non-guilty individuals for of whom pictures are kept in the database, against their will.

According to a report from the Parliament and the French data protection authority (CNIL), 19 millions of files and 8 millions of images are saved in this database.

Article R40-26 of the Code of Criminal Procedure explicitly allows the police and the “gendarmerie” (military police) to use facial recognition on these millions of images. As the CNIL explained in 2011, this system makes it possible “to compare the images of the faces of people involved in the perpetration of offenses captured via CCTV devices with the photographies stored in the database”, for example by comparing the face of a person filmed in the street by a camera with the photographs stored in the file to identify this person. This technique is already used in current criminal affairs and, recently with the Covid lock-down, strong suspicions of misappropriation of this file weigh on certain fines addressed to “people known to the police”.

The creation of the database for French biometric ID (called “Fichier TES”) increases the risk. This new TES database, for which the access is widely granted to the French law enforcement with the Intelligence Act, will regroup the entirety of France’s citizen’s ID card and passport pictures. These evolutions could allow the police to move further in its use of facial recognition and hence proceed to a true biometric massive surveillance. A well detailed analysis is available here (in French).

The need for litigation

The biometric mass surveillance is heavily invasive and inhuman. It allows an invisible, permanent and massive control of the public space. It makes everybody a suspect. It turns our face into a tracking device, rather than a signifier of personality, eventually reducing it to a technical object. It enables invisible control. It establishes a permanent and inescapable identification regime. It eliminates anonymity. That is why, today, we challenge these provisions of the criminal procedure code on the TAJ file : to not let any breath and resting spot to this biometric mass surveillance.

Just as we challenged (and defeated) the facial recognition gates in highschools in the South of France region. Just as we challenged the Alicem mobile application. Or automated CCTV in Marseille. Or just as, with the support of hundreds French associations, we asked for the ban of the facial recognition.

We based our legal complaint on the notion of “strict necessity” which is at the very heart of the 2016/680 European Directive. Article 10 of this Directive states that every biometric data used (face obviously included) in order to identify is only possible “where strictly necessary” and “subject to appropriate safeguards for the rights and freedoms of the data subject”.

However, it is obviously not the case for the TAJ database: there is no “strict necessity” that can justify such file. On the opposite, the French Justice minister states that this database is just a “technical support” (far away from the “strict necessity”). Moreover, there is no “appropriate safeguards” for this use of facial recognition. The use of facial recognition from the TAJ images is a clear breach of the European law and the French law which has transposed these different principles.

Facial recognition in the TAJ file is one of the spearhead of the biometric surveillance in France. And this is reason we are challenging it. We will continue to denounce and challenge any kind of surveillance: not only facial recognition but all surveillance technics that continue to spread and enhance the Technopolice.