Cultured Proportionality: Navigating the EU's Fragmented Facial Recognition Landscape

• Department of Law

PhD thesis defence by Natalia Menéndez González

This thesis discusses the application of the proportionality principle to the use of Facial Recognition Technology (FRT) within the European Union (EU). It does so by conducting an empirical study of 48 opinions and decisions on the lawfulness of the use of FRT by selected regional and national Data Protection Authorities (DPAs), Article 29 Data Protection Working Party, the European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS). This study is interwoven with material from expert interviews conducted with 25 (former) members of the selected regional and national DPAs, the EDPB and the EDPS.

The thesis takes as a working assumption that the current EU legal framework applied to FRT is insufficient to provide adequate protection against human and fundamental rights violations by the use of this technology, particularly but not only the rights to privacy and data protection. Because of this, this thesis will focus on the application of the proportionality principle, a legal principle traditionally used to contest excessive and discretionary action, to the use of FRT. It will do so by building a theoretical framework around the principle of proportionality, discussing its enforcement by supervisory authorities and proposing a novel interpretation of the principle as an accountability tool (Chapter Two). It will also describe the normative framework for the application of the proportionality principle to the use of FRT (Chapter Three). It will empirically study (Chapters Four and Five) how the cultural idiosyncrasy of the different Member States affects their stance towards FRT in general and its proportionality in particular and whether the EDPB and the EDPS perform any kind of uniformising role when it comes to the consistent application of the data protection regulation to FRT throughout the EU territory. Finally, Chapter Six will conclude whether it is possible to lawfully use FRT by applying the norms of the proportionality principle, what is the current practice by DPAs and the consistency issues that it entails at the EU level.