Between Efficiency and Safeguards: AI-based Law Enforcement Tools under EU Law - Analysing the use of AI-based predictive policing and biometric identification tools within the Area of Freedom, Security and Justice

Abstract

The use of artificial intelligence (AI) within law enforcement is increasing within the European Union (EU). AI-based tools such as predictive policing and biometric identification, particularly biometric facial recognition, are used in the prevention, detection and investigation of crimes. While these tools promise increased efficiency and enhanced security, they also raises several concerns connected to the protection of fundamental rights. The tools operate within the Area of Freedom, Security and Justice (AFSJ), a policy area aiming to ensure a high level of internal security at the same time as fundamental rights are protected. This study examines how the use of predictive policing and biometric identification AI-tools by law enforcement impacts the protection of fundamental rights within the EU. The analysis focuses on the right to privacy, data protection, non-discrimination and the presumption of innocence stipulated in the EU Charter of Fundamental Rights (EUCFR). Particular attention is also given to the legal framework surrounding these AI-tools, including the EU Artificial Intelligence Act (AIA) and the Law Enforcement Directive (LED). This study uses several methods. The legal dogmatic/analytical method, the EU legal method and the method of legal informatics is used to examine and analyse both the legal and technological aspects surrounding predictive policing and biometric identification. Findings show that predictive policing and biometric identification AI-tools used within law enforcement impact fundamental rights. The tools use extensive data processing, there are risks of bias and discrimination within the algorithms in the systems and their function as decision-making tools impact individuals’ rights to be treated as innocent. While the AIA and the LED introduces important safeguards, challenges connected to these four rights still remain. Putting these challenges into the context of AFSJ, reveals a pressing need to strike a balance between innovation, security, efficiency against fundamental rights.