Regulating police use of facial recognition technology in the Netherlands: The complex interplay between criminal procedural law and data protection law
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/20322844231212834 |
| Author | Maša Galič,Lonneke Stevens |
| Date | 01 December 2023 |
Special Issue Article
New Journal of European Criminal Law
2023, Vol. 14(4) 459–478
© The Author(s) 2023
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DOI: 10.1177/20322844231212834
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Regulating police use of facial
recognition technology in the
Netherlands: The complex
interplay between criminal
procedural law and data
protection law
Maˇ
sa Galiˇ
cand Lonneke Stevens
VU University Amsterdam, Netherlands
Abstract
In this contribution, we provide insight into the complex interplay between criminal procedure law
and data protection law when it comes to regulating police use of facial recognition technology. By
analysing the Dutch ‘Police Deployment Framework for Facial Recognition Technology’, we show
that data protection law and criminal procedure do not interact with eachother to a sufficient
degree in relation to facial recognition technology. We identify several barriers standing in the way
of their cooperation, resulting in notable gaps in the system of checks and balances: (1) a different
underlying mindset (maximum versus minimum use of data); (2) a different assessment of the
required legal basis (proportionality versus strict necessity); and (3) an ineffective web of su-
pervision. We suggest several ideas for filling these gaps and bridging the disconnection: following
the approach in existing Dutch law used for the processing of ANPR and DNA data, encoding the
less ‘muddy’rules of data protection law into digital technology itself, and further research on the
feasibility of effective supervision by the Dutch Data Protection Authority. Our contributi on shows
that in order to properly regulate facial recognition technology, scholars need to look beyond the
edges of their own fields of law.
Keywords
facial recognition technology, regulation, data protection law, criminal procedure law, data-driven
criminal investigation
Corresponding author:
Maˇ
sa Galiˇ
c, VU University Amsterdam, De Boelelaan 1105, 1081 HV Amsterdam, Amsterdam 1081 HV, Netherlands.
Email: m.galic@vu.nl
Introduction
The use of facial recognition technology has become popular with police forces around the world,
including Europe. Facial recognition is a catch-all term for several functions, most notably
verification and identification.
1
Particularly the latter type of application –the identification of
suspects or, more broadly,‘persons of interest’–has caught the attention of law enforcement. The
technology is said to be more valuable operationally than ordinary Closed-Circuit Television
(CCTV) surveillance, as it can identify individuals remotely (sometimes in real-time) and link
them to other information gathered by the police.
2
At the same time, facial recognition technology
used for identification has recently become one of the most hotly debated topics because of its
capability to disrupt the balance of power between the governors and the governed.
3
It has even
attracted a proposed partial ban in the draft EU Regulation on Artificial Intelligence (draft AI
Act).
4
Because of the way the technology works when deployed for identification purposes in
public space, it poses grave concerns for the fundamental rights to privacy and to protection of
personal data and –particularly in cases of public protest –the freedoms of expression and
assembly.
Facial recognition technology deploys sophisticated analytical techniques, including Artificial
Intelligence (AI), to create mathematical representations (i.e., biometric templates)of ‘captured
facial images’and to then compare these with the representations of ‘reference facial images’.
Where the reference images have been previously assembled in a general police database or
a specifically composed watchlist (e.g., potential troublemakers at a public protest),
5
the captured
images are extracted from CCTV and other cameras deployed in public spaces, or scraped from the
internet.
6
However, in order for any reference face to be identified in a particular time and place, the
facial images of everyone within the gaze of the video camera(s) at that time and place need to be
captured and analysed.
7
Moreover, facial recognition technology may be deployed in order to
identify tens or even hundreds of persons of interest on a watchlist at a particular place. The use of
1. Theodore Christakis, Karine Bannelier, Claude Castelluccia and Daniel Le Metayer, ‘Mapping the Use of Facial
Recognition in Public Spaces in Europe –Part 1: A QuestforClarity: Unpicking the“‘Catch-All”‘ Term’(Report of
the AI- Regulation Chair (AI-Regulation.com), May 2022), 6. Some authors also include ‘face analysis’,which
enables the detection of emotions, gender, race etc., among the possible purposes of facial recognition.
2. Seee.g.,JoePurshouseandLizCampbell,‘Automated facial recognition and policing: a bridge too far?’[2022]
Legal Studies 42; Giulia Gentile, ‘Does Big brother exist? Facial recognition technology in the United Kingdom’,in
Rita Matulionyte and Monika Zalnieriute (eds), The Cambridge Handbook on Facial Recognition in the Modern
State (OUP forthcoming).
3.Purshouse and Campbell (n2).
4.On 14 June 2023, the European Parliament negotiated and voted for an almost complete ban on the use of remote
facial recognition systems in publicly accessible places.See https://www.europarl.europa.eu/doceo/document/TA-
9-2023-0236_EN.html. The text of the upcoming AI Act is still likely to change during the deliberations between
the European Commission, the European Council and the European Parliament.
5. Theodore Christakis, Karine Bannelier, Claude Castelluccia and Daniel Le Metayer, ‘Mapping the Use of
Facial Recognition in Public Spaces in Europe –Part 2: Classification’(Report of the AI- Regulation Chair (AI-
Regulation.com), May 2022), 5-7.
6.Which, allegedly, severalpolice forces, including the Dutch, have done by using ‘Clearview’facial recognition software. See
e.g., https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html;https://nos.nl/artikel/
2324950-ook-in-nederland-gezichtsherkenning-met-omstreden-programma-clearview. The European Parliament’s version of
the AI Act from 14 June 2023 would prohibit indiscriminate and untargeted scraping.
7.Captured faces are always compared one-by-one with all of the faces in the reference database. Christakis et al. (n 5)
14.
460 New Journal of European Criminal Law 14(4)
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