ARTICLE 19 is disappointed by today’s judgement of the Court of Justice of the European Union (CJEU) in a case concerning public access to documents about a controversial European Union-funded emotion recognition project to be deployed at borders. The EU Research Executive Agency (REA) denied access to numerous documents related to the project, citing the protection of the commercial interest. In Breyer v REA, the General Court, in first instance, ruled that the harm to the commercial interests outweighed the public interest in having such information disclosed as the requested documents related to the early stages of the research project. Today, the CJEU upheld this decision.
Barbora Bukovská, ARTICLE 19 Senior Director for Law and Policy, commented about the decision.
“The European Court of Justice today failed to recognise the importance of transparency and democratic oversight for taxpayer-funded projects, especially those that threaten freedom of expression, privacy, and equality.
“This highly problematic emotion recognition technology was developed and tested in an opaque and unfettered manner. We believe that EU taxpayers should know about projects funded by them and scrutinise them from their inception, especially if they have such a profound impact on human rights, as in this case.
“There is no reason why the substantial funding of research projects about extremely questionable technologies, paid for with EU taxpayers money, should be subtracted from public debate, and from democratic oversight. There is no justification to postpone the public debate to the deployment phase of these technologies only.
“ARTICLE 19 has long argued that ‘emotion recognition’ technologies – tested in the iBorderCrtl research project – raise numerous challenges for fundamental rights, especially at borders, where identity-based profiling is already common practice. Moreover, emotion recognition’s pseudoscientific foundations render this technology untenable. It should be completely banned.”
Background to the case
On 5 November 2018, Patrick Breyer, a member of the European Parliament and digital rights activist, requested access to documents held by the European Commission regarding the development of iBorderCtrl. iBorderCtrl, an emotion recognition technology which uses artificial intelligence to allegedly detect lies told to border agents, received 4.5 million euros in EU funding.
The REA – the agency at the helm of the iBorderCtrl project – granted Breyer full access to one document and partial access to another. They denied him access to numerous additional documents, citing the protection of the commercial interests of a consortium of companies collaborating with the REA on the project.
Breyer challenged this decision, claiming it was in the public interest for details about projects like the iBorderCtrl software to be transparent and subject to public debate. He also called into question the scientific veracity of ‘visual lie detection’ and other related technologies the iBorderCtrl project considers.
In its 15 December 2021 verdict, the General Court established that a number of access requests denied to Breyer were not sufficiently justified by the REA. While the Court’s recognition of public interest in the democratic oversight of the development of surveillance and control technologies is a step in the right direction, the decision did not go far enough and Breyer appealed. In its decision, the Court suggested that such democratic oversight should begin only after these types of research and pilot projects were concluded. In other words, the Court failed to acknowledge the importance of ensuring transparency is in place at the outset of taxpayer-funded projects with immense impact on citizens, rather than when research and development has already been completed.
In today’s decision, the CJEU held that the General Court did not err in its previous decision when it ruled that the commercial interests of the REA and its consortium members outweighed the public interest. The CJEU upheld that “general considerations” of overriding public interest invoked by Breyer were not enough to establish that the need for transparency in this situation was “particularly pressing”.
While the CJEU did recognise that the fact that the obligation of participants in the iBorderCtrl project to respect fundamental rights is not grounds to assume that they will automatically do so, it maintained that because this was a research project, the public’s right to know about the results – rather than the process of the research – was sufficient.
On the positive side, the CJEU laid down three important principles for the future transparency of EU surveillance research:
- Not all information about a EU research project may be withheld from the public as a trade secret, but only the “tools and technologies” developed within the framework of the project.
- The results of a project are not per se trade secrets.
- Public access to information is not excluded even in the case of ongoing EU research projects.
ARTICLE 19 supported Breyer’s argument that there is not just overriding public interest in transparency regarding the controversial project, but scientific, media, political, and democratic interest, too. We have also called for a total ban on the design, development, sale, and use of emotion recognition technologies. Such technologies are deeply problematic and fundamentally do not work: they are predicated on mass surveillance, compound discrimination against marginalised groups, violate the right to privacy, and are ripe for abuse.