Video Surveillance, Biometric Data and Presumption of Guilt

The expansion of control systems in Uruguay raises questions about privacy, legality, proportionality and the use of artificial intelligence.

In our previous article we discussed the controversy generated by the installation of video surveillance arches in Uruguay.
We pointed out the tension between security and privacy.
The clash produced by the use of these control technologies, increasingly advanced and invasive, and the right of citizens to go about their lives without inquisitorial devices hanging over their heads all day long.
And the debate, which is not limited to these arches, has been developing among different jurists specialized in different fields of administrative, constitutional and procedural law.
The administrative law specialist and university lecturer Dr. Pablo Schiavi has emphasized the risk of the progressive expansion of these systems.
This jurist maintains that the information collected through these means is not the property of the Ministry of the Interior, but of the citizens.
That is why the State is explicitly obliged to guarantee the custody, the destruction deadlines and the limits of that database.
From academia and traditional administrative law doctrine, the principle of legality applied to Police action and the use of public information technology has been repeatedly analyzed.
Thus, it is constantly stressed that the use of surveillance technologies that affect fundamental rights established in the Constitution cannot be sustained solely through lower-ranking regulations or decisions of expediency by the Executive Branch.
The Personal Data Protection Law No. 18,331, enacted on August 11, 2008 during the presidency of Dr. Tabaré Vázquez, defines as:
“Biometric data,” those “personal data obtained from a specific technical processing, relating to the physical, physiological or behavioral characteristics of a natural person which allow or confirm the unique identification of that person such as fingerprint data, image or voice recognition” (Art. 4).
The same article also establishes the consent of the data subject as an indispensable requirement.
That is: “any manifestation of will, free, unequivocal, specific and informed, by means of which the data subject consents to the processing of personal data concerning him or her.”
The information collected by these systems that capture facial features in public spaces constitutes a processing of biometric data, considered especially protected.
But where is the consent?
It is obvious that in public spaces the citizen does not give explicit consent.
The exception of “public interest” or “State security” to justify data capture must be strictly limited.
Therefore, it is essential to avoid the control or surveillance of the movements of citizens who are not under suspicion.
The point is that every time someone leaves or enters Montevideo (for now this is limited to that area) they will pass through structures capable of tracking them.
And that, jurists say, may violate the principle of proportionality.
A rule that requires any measure of public intervention,
and this seems to be one, to be suitable, necessary and balanced in relation to the objective it pursues.
In short, that the benefit be greater than the sacrifice of the right involved.
A system that aims to detect cell phones and capture the phone number of passersby.
That records faces en masse without distinction or prior court order turns the entire population into suspects.
And all of this is aggravated by the intervention of AI.
In traditional systems, images are stored on a hard drive and reviewed only when a crime occurs.
The algorithms handled by AI make it possible to instantly cross-reference the captured face, the license plate and the cell phone identifier.
Thus, it is possible to reconstruct the complete itinerary of any person in a matter of seconds.
Moreover, the software not only recognizes identities, but also makes it possible to detect behavior patterns or movements associated with crimes.
And the citizen who is the object of that interpretation ends up classified as a potential threat.
We are all subject to preventive profiling.
Fidel Castro is said to have stated: “It is preferable to execute nine innocent people than to let one guilty person go free.”
These surveillance systems in the process of being installed seem to serve the principle, so dear to totalitarian ideologies, that we are all guilty until we prove otherwise.

Security and privacy
Biometric data and legality
Algorithmic surveillance

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