The French Supreme Administrative Court Finds the Use of Facial Recognition by Law Enforcement Agencies to Support Criminal Investigations 'Strictly Necessary' and Proportional

Abstract

In this case the French NGO “La Quadrature du Net” (LQDN) asked the French Supreme Administrative Court ("Conseil d'Etat) to invalidate article R 40-26 of the code of criminal procedure which expressly provides for the use of facial recognition to aid in the identification of suspects during criminal investigations. LQDN considered that the use of this technology was not “absolutely necessary” as required by the French version of Article 10 of the Law Enforcement Directive (LED).

The Court dismissed this claim. The Conseil d’Etat claims that using facial recognition in such a way is 'absolutely necessary' when the amount of data available to the police is taken into account, and that it is proportionate to the aim pursued.

This decision feeds into the debate about how to interpret the "strict necessity" requirement ("absolute necessity" in the French version of the text) laid down by the LED concerning the use of facial recognition.

This decision is also part of a wider issue in Europe, where facial recognition for investigative purposes has been under the spotlight. Indeed, States are currently thinking about which facial recognition techniques should be prohibited and what facial recognition uses should be authorised, assuming that adequate safeguards are put in place.

The view of the Conseil d’Etat, together with that of the Italian DPA cited in the article, tend to suggest that States consider that deploying facial recognition for ex-post individual identification purposes is necessary and proportionate to the aim pursued, which is to repress crime. The EDPB and the draft AI Act proposed by the European Commission also seem to align in terms of allowing such use of facial recognition technology for ex-post individual identification in criminal investigations, if there is an appropriate national legal framework authorizing this and providing all adequate safeguards.

Keywords: Facial Recognition; Biometric Identification; Biometric Data; Personal Data; Data Protection; Privacy; European Law; Law Enforcement Directive; Necessity; Proportionality; Criminal Investigations; France; Conseil d’Etat; Law Enforcement Authorities

JEL Classification: K14; K33; K42