On June 24, 2021, ECNL partnered with Human Rights Watch, Article 19, Privacy International and the International Center for Not-for-Profit Law (ICNL) – all members of a global CSO Coalition working on counter-terrorism issues – to organize the only civil society-led event at the UN Counter-Terrorism Week. The event was also organized in collaboration with the Mission of Germany to the UN and the UN Special Rapporteur on Human Rights and Counter-Terrorism (CT). The speakers discussed the human rights risks of using biometrics in CT and explored how safeguards can be integrated and strengthened.
Check out the recording of the event below:
This session took place against the backdrop of increased counter-terrorism measures in the UN with the Global Counter-Terrorism (CT) Strategy, where emerging technologies are a critical component thereof. Biometric technologies, including AI-driven surveillance technologies such as facial recognition and emotion recognition, are proposed as effective tools for countering terrorism. We see ever more centralized and interoperable databases of biometric data including facial prints, fingerprints, and DNA, among others.
Yet despite the international enthusiasm for using biometric and AI-driven technology in the context of CT, there is little evidence showing that these technologies are indeed effective for preventing or combating terrorism. Risks of human rights abuses related to the use of biometrics in CT, however, are severe.
Much more evidence, scrutiny, and safeguards are therefore needed to justify the collection, storage, and sharing of data – especially biometrics – as well as deployment of AI systems in this context.
1. Side-stepping the human rights framework in the use of biometrics for counter-terrorism
Human rights must be the basis of CT measures, as underscored by Bernd Heinze from the Federal Foreign Office of Germany. While security is an important perspective, it is neither the only, nor the primary one. Heinze added that
“Beyond respecting human rights under international law, CT measures cannot be successful if they create new grievances that terrorists can capitalize on.”
The human rights that people enjoy offline are also applicable online, and irrespective of the type of technology applied. This is especially true during the pandemic when we spend most of our time online.
And yet, the 2017 UN Security Council Resolution 2396 on foreign terrorist fighters - and most CT measures at the national and international level – see human rights as an “add-on” as opposed to foundational principles. While the scope of resolution 2396 can appear narrow on its surface, it introduces legally binding obligations on all UN Member-States to develop and share biometric data but without much guidance and sufficient human rights protections. We now see widespread data collection which use is disproportionate and has significant human rights impacts. The existing (weak) guidance to Member-States is insufficient guidance to avoid abuse, as it merely cautions that data should be collected “responsibly” and aimed for “properly identify[ing] terrorists”. Professor Fionnuala Ni Aolain, the UN Special Rapporteur on Human Rights & Counter-Terrorism, criticized the adoption procedure of these measures. This resolution was adopted under Chapter VII of the United Nations Charter, which sets out the UN Security Council's powers to maintain peace. Requiring such invasive practices through a Chapter VII resolution, which notorious for its opacity and lack of stakeholder participation, is an affront to the integrity of international law.
2. The impacts of biometrics on human rights and civic space
Marlena Wisniak from ECNL warned that biometric technologies are already used today for a broad range of purported goals, such as controlling borders, identifying, monitoring and surveilling persons of interest, predictive policing, and risk assessments for criminal justice, among many others.
As these technologies are increasingly used in public space, of particular concern are the impacts of these systems on freedom of assembly and association, right to protest, freedom of expression, non-discrimination, right to privacy, right to life, liberty and security, and access to remedy, as well as economic, social, and cultural rights.
Unfortunately, Marlena stressed that these negative impacts are not yet fully recognized nor addressed by UN bodies. Civil society representatives are often the first to sound the alarm on human rights abuses related to CT, while simultaneously being targeted and harmed by the misuse of CT measures themselves. Marginalized and vulnerable groups are disproportionately at risk, especially racial, marginalised ethnic people and religious minorities, women and gender non-binary persons, LGBTQI groups, refugees and migrants, people with disabilities, children, and those living in conflict zones, among others. Other historically at-risk groups, such as human rights defenders, political dissidents, and journalists, are at great risk of harm with the deployment of these technologies, too.
Maya Wang from Human Rights Watch explained how the Chinese government has been using mass surveillance systems to monitor people’s relationships and movements. In Xinjiang, the government has been carrying out widespread data collection and processing of the Uighur community and other marginalised ethnic people, who have no ability to challenge this practice. This is especially worrisome as the use of biometric data often leads to arbitrary detention of people, for example in abhorrent political educational camps. Because everything that the Uighurs do is subject to surveillance, they adjust their behavior and relationships accordingly.
As a result, it’s not only peoples’ right to privacy that is impacted, but a wide range of other rights, too.
CT is consistently used to justify the deployment of these systems, with the definition of terrorism being so broad that it essentially includes any advocacy that is construed as criticism of the State. Today, the entire Uighur community is de facto considered a terrorist group and subjected to deeply invasive surveillance.
Paulo Jose Lara from Article 19 Brazil connected the use of biometric technologies in CT to the role that information sharing and centralized databases have played in national security, and their severe impacts on freedom of opinion, expression, association and assembly. State repression, including silencing and harming political dissidents and activists, has long been justified by and perpetuated through so-called anti-terrorism laws. This playbook started in the 60s throughout the early 80s, where most of South America was ruled by military regimes, and carries on today. In 2016, Brazil approved the most recent anti-terrorist legislation, which has been amended multiple times since. The perceived threat of violence to national security is now being used to justify the uptake and deployment of emerging and biometric technology, much of which is developed in the Global North. Unfortunately, the consequences thereof are felt much stronger for marginalized groups, especially racialized persons and women and gender non-binary persons.
Undoubtedly, biometric technologies contribute to further shrinking (already fragile) civic space in South America.
3. The dangers of function creep and normalization of biometrics in other sectors
The “function creep” of emerging technologies leads to a spillover effect from CT to all aspects of our life. The UN Special Rapporteur noted that by introducing a mandate to collect biometric data of every person traveling by plane, resolution 2396 effectively creates a global mandate to collect biometric data no matter where people are.
Excessively disproportionate, it is “a wholesale response to what is a retail problem.” Fundamentally, once a biometric system is developed for border control, it later grows in scope and function beyond CT and touches all aspects of migration.
This expansion also takes place against the backdrop of the COVID-19 pandemic, where Member States have used the pandemic as a basis for new security legislation and increased executive powers. Global CT strategy is now offering its tools of surveillance, tracking, and widespread collection of people’s most sensitive data as a response to the COVID-19 crisis, in the absence of any sustained human rights protection. Indeed, Maya warned that
once databases and systems such as contact tracing are established, they become an entrenched practice that is difficult to challenge. And yet, their effectiveness has not been demonstrated.
Today, the use of biometrics has been normalized in all areas of life, from public transport to shopping malls and sports facilities. In Brazil, the 2014 FIFA World Cup and 2016 Olympic Games were a prime occasion to implement large-scale systems of “command and control”, under the justification of ‘security’. Tomaso Falchetta from Privacy International also explained that the ‘mission creep’ aspect of biometrics has disproportionate impacts for populations in conflict zones. In the context of the U.S. ‘war on terror’, for example, the collection and use of biometric data first began with detainees suspected of terrorist acts but quickly spread to anyone of ‘concern’. The practice involved indefinite storage of data and interoperability with other data in the U.S. for other purposes.
As is often the case in CT, there is no available human rights impact assessment that stakeholders can consult.
4. Human rights abuses related to companies’ services and activities
As the private sector plays a critical role in designing, developing, and deploying algorithmic-driven systems and other emerging technologies for CT purposes, companies must respect human rights and humanitarian law, in line with the UN Guiding Principles on Business and Human Rights.
Tomaso noted that the capacity of Member-States to conduct surveillance may depend on the private sector’s will to cooperate with – or resist to – such surveillance. Many governments are relying today on companies to develop and deploy surveillance technology in the context of CT. Companies, for their part, often create the need to use these technologies by marketing them to law enforcement and public authorities directly, promoting market and security-friendly narratives, and operating under a ‘revolving door policy’ where company representatives are hired by public authorities and vice-versa.
We urgently need to know more about – and break – the opaque and problematic private-public partnerships.
This requires increasing transparency in public procurement and better understanding the financial dynamics hiding behind the scenes.
As most technology companies operate in the Global North (primarily in white, cis male and upper socio-economic class spaces), existing structural discrimination is encoded in and perpetuated by their products. Efforts to ‘de-bias’ or improve accuracy of these systems often fail, for their part, to consider the socio-technical systems in which technologies are deployed, and how they can lead to further discrimination. Paulo Jose decried the significant influence that these companies have in the Global South. He called for reimagining the political economy of technology, where products are designed by and for communities, especially historically marginalized and at-risk groups.
5. The urgent need for inclusive and human rights-based regulation
Biometric technologies tend to operate in a legal vacuum. Marlena added that, regrettably, where regulation exists, it’s often inadequate, undermined by derogations and exceptions, and/or leaves lots of leigh way to companies through self-regulation and voluntary principles. Maya urged regulators to look beyond the narrow scope of biometrics such as DNA or face prints for data collection and regulate biometric data as a whole. For regulation to be truly effective, it must also apply to data collection and use of, among others, IMEI numbers of cell phones, IP addresses, or information related to relationships between people. Data practices at the city and county levels (e.g. smart cities), and their impacts on human rights, should also be considered.
Maya emphasized that, central to any analysis, are the power dynamics and inequalities inherent in biometric systems between the State, companies and citizens. This is why a multistakeholder approach to policy development in CT is necessary. Bernd strongly encouraged collaboration between civil society, academia, the private sector, government and international organizations to create accountability and transparency rules for the use of biometrics. Taking a human rights-based approach to CT also means centering human rights and stakeholder engagement when developing implementation tools. Tomaso expressed concerns that civil society organizations were largely absent form the process of drafting the UN Compendium of recommended practices for the responsible use and sharing of biometrics, and that the voices of companies developing and deploying biometric technologies were most dominant.
The Special Rapporteur agreed, condemning the reality that civil society is at best invited (in the margins) to policy-making for CT, and oftentimes excluded altogether. She said that civil society representatives have to rely on their own initiative, and the support of a few sympathetic States, to make their voices heard. Paulo Jose pointed to the added challenges of Global South-based civil society organizations to participate in this process. The UN CT week showed once again the importance of including civil society and affected communities in policy debates related to CT.
And yet, this event organized on the margins of the CT week, was the only civil society-led session. We will say it over and over again, loud and clear: any policy or legal debate must begin with, and continuously center, human rights and the particular risks to marginalized communities. Civil society and affected communities are the best positioned to achieve this goal.