Interpellation Glättli (21.3580): Regulation of facial recognition in public spaces
Submitted text
The EU Commission presented proposals for the regulation of artificial intelligence on April 21, 2021. According to these, the biometric identification from a distance in public spaces in real time also be prohibited with regard to law enforcement, but the use of facial recognition remain permitted under certain circumstances. In Switzerland, the revised Data Protection Act will come into force on January 1, 2022. It qualifies “biometric data that uniquely identifies a natural person” as “particularly worthy of protection.
1. is the Federal Council of the opinion that Facial recognition systems in any case biometric data which fall under Article 5 litera c number 4 revDSG and thus have to be considered “particularly worthy of protection”? Does face recognition thus in any case constitute a serious interference with the right to informational self-determination under Article 13(2) of the Federal Constitution?
2. to what extent does the In the view of the Federal Council, the revised Data Protection Act provides sufficient protection of privacy. how confident are you about the introduction of facial recognition systems, particularly by cantonal police forces and private third parties? In the view of the Federal Council, how much leeway do the cantons have if they want to legalize the use of facial recognition systems by the cantonal police or carry out pilot projects by means of special legal decrees LB.
3. in the light of developments in the EU, does the Federal Council also see a need for action in this regard? Explicitly regulate the use of facial recognition systems at the federal level? Does this also include a fundamental ban on facial recognition in public spaces or at least a moratorium until a public/political debate on the issue has taken place?
4. how does the Legal situation regarding facial recognition in the cantons? Are there cantons in particular that impose stricter requirements on the use of facial recognition systems than those to be derived from the revised Data Protection Act?
Statement of the Federal Council of 11.8.21
In the new Federal Data Protection Act of September 25, 2020 (BBl 2020 7639), which is scheduled to enter into force in 2022, biometric data “that uniquely identifies a natural person” (Art. 5(c)(4)) will qualify as personal data requiring special protection. This implements the Protocol (ETS No. 223) amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108+), which permits the processing of such data only if appropriate safeguards are provided. In addition, it also takes into account the guidelines of the Advisory Committee of this Convention on facial recognition of January 28, 2021. Under “biometric dataThe term “digital data” includes, for example, digital fingerprints, facial images, iris images or voice recordings. These data must necessarily be stored on a specific technical procedure that allows the unique identification or authentication of a natural person.. An ordinary photograph does not meet these requirements (BBl 2017 7020).
1. if the facial recognition system enables the person to be unambiguously identified, this is processing of data requiring special protection within the meaning of Article 5 letter c number 4 nDSG. Since for the processing of such data pursuant to Article 34 paragraph 2 letter a nDSG a Basis in a law in the formal sense is required, the federal legislature has seen this as a serious encroachment on the right to informational self-determination under Article 13(2) BV.
2. The Federal Council is of the opinion that the new FADP ensures sufficient protection for the processing of data by means of facial recognition by federal authorities and private parties. However, the FADP does not apply to data processing by cantonal bodies. The cantonal authorities have some leeway in the use of facial recognition, but they must comply with Articles 13 and 36 of the Federal Constitution and, in the future, with the requirements of Convention 108+, which Switzerland will soon ratify. In the decision BGE 146 I 11 put the Federal Court held that the collection of identification data by the cantonal authorities on the basis of license plates as part of a traffic monitoring system and the linking of this data with other databases within a few seconds constituted an interference with fundamental rights under Article 13(2) BV. The Federal Supreme Court found that in the case in question the legal basis was not sufficient. The requirements set by the Federal Supreme Court would apply a fortiori if the cantonal authorities were to resort to a surveillance and identification system with facial recognition.
As can be seen from the above considerations, the federal and cantonal authorities may only use facial recognition for identification purposes in public spaces if there is a sufficient legal basis for doing so. Furthermore, the interference with fundamental rights must be justified by a sufficient public interest, must be proportionate and must not affect the core content of fundamental rights (Art. 36 BV). An absolute ban or moratorium at the federal level is not on the agendaThe Federal Council is not aware of any further-reaching cantonal regulations.