Security, privacy and freedom and the EU legal and policy framework for biometrics

Abstract

The adoption of the Treaty of Lisbon and the granting to the Charter of Fundamental Rights of the same legal force as the Treaty has lent a new impulse to the consideration of fundamental human rights by the European Union (EU). The question remains, however, as to how this legal discourse, centred upon human rights, is actually shaping the EU regulatory framework in specific policy domains. The aim of this paper is to critically appraise the ways that the fundamental rights of security, privacy and freedom guaranteed by the Charter are being construed in the context of EU law and policy on biometrics, an ethically and morally sensitive security technology whose development and use are being actively promoted by the EU. We conclude that the interpretation of the pertinent rights, as well as their balancing, owes a great deal to the goals of EU policies for research and development, and under the auspices of Freedom, Security and Justice, shaped largely by political and economic considerations. These considerations then tend to prevail over ethically or morally-based legal claims.

Introduction

In a recent communication on a ‘Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’, the European Commission (EC) admitted that ‘decisive steps have been taken towards a Europe of fundamental rights.’¹ Seeking an ‘ambitious fundamental rights policy’, the Commission believed that the Charter's new status as a binding normative instrument, following adoption of the Treaty of Lisbon, would boost up the Union's work in this field.² Also, concern with the effectiveness of the Charter's rights and principles is manifest: the Charter, the Commission underlines, ‘is not a text setting out abstract values, it is an instrument to enable people to enjoy the rights enshrined within it when they are in a situation governed by Union law.’³

According to the EC, the promotion of fundamental rights has been rendered one of the EU's priorities of the area of justice, freedom and security. Also, amongst the fundamental rights singled out in the same EC Communication, as deserving to be addressed by individual EU policy is the right to the protection of personal data, now guaranteed by Article 8 of the EU Charter. The growing relevance of security, privacy and data protection, and of their interface with freedom in today's society has gone along, side by side, with dramatic developments in the fight against crime and terror as well as in technologies employed to access, process and use personal data.

Yet, the Communication recognizes the existence of absolute rights and rights that may, under certain conditions, be subject to limitations. Drawing on well-established jurisprudence, the Commission adds that such limitations must be provided for in law. They must be necessary, respect the essence of the rights, and observe the principle of proportionality and effectively meet objectives of general interest accepted by the EU such as the need to protect the rights and freedoms of others. In saying so, the Commission also endorses a rather consensual understanding of the need for balancing rights, whenever rights conflict with one another, as well as to match rights with the public interest.

No doubt the Charter offers a prime setting for the expression of the most prized European values in the form of either fundamental individual and collective rights or fundamental principles. Accordingly, the Charter has been regarded as an effort to make human rights determine rather than simply limit a EU system that is predominantly designed to guarantee market freedoms. It does this by requiring the legislator and the judiciary to practise tilting the balance between regulatory policies and individual freedoms in favour of the latter.⁴ It has also been argued that a process mirroring the construction of the internal market may be in the making for fundamental human rights as well: with negative rights and freedoms and positive rights and freedoms too; in other words, ‘a comprehensive, coherent, balanced and forward-looking EU human rights policy.’⁵

While the adoption of the Charter has raised such optimistic expectations, uncertainty remains as to the manner in which the rights embodied in the Charter of Fundamental Rights are shaping legislation and legal practice in specific fields. Whilst the role of the courts in their dealings with fundamental human rights has been the object of extensive scholarly analysis, limited attention has been devoted to the role of the legislative process in rights' definition and balancing. How is the meaning of various constitutional values being construed through EU law, for example, impacting process? And to what extent does the EU legislator show concern for the perceptions of the relevant values and rights by European citizens? In this connection one might claim that the relevant issue facing the fabric of rights is not just the impact of their constitutional interpretation, but also institutions, procedures and substantive principles that an advanced democratic system ought to ensure.

One might ask how the aforesaid strategy for the effective implementation of the Charter can help shaping the resolution of tensions in this field. The Charter may definitively play a role as a benchmark against which the defence of fundamental rights is matched with both so-called ‘basic economic freedoms’ of the Internal Market, and the aims of security policies.⁶ But in what ways are these conflicting values and rights being interpreted and assessed?

Against this backdrop, we will seek to critically examine how the rights to security, privacy and data protection, and to some extent also freedom are being construed alongside the objectives of major EU policies, i.e. the realization of the Internal Market and the Area of Freedom, Security and Justice based on a case study, biometrics. Biometrics is a security technology whose development is being actively supported by the EU and is employed mainly for individual surveillance and control. Biometrics has elicited public controversy and anxiety across Europe that we take as an indicator of its problematic nature and of the dilemma that it raises over fundamental rights to privacy and liberty and perhaps also human dignity.