17 October 2024
Nine Months Into Chaos
Ecuador is nine months away from the chaotic events of 9 January 2024: attacks and the seizure of a live newscast by members of organized crime, the consequent declaration of an “internal armed conflict” by the Presidency and the designation of 22 organized crime groups as “military targets”. This social and political process which has transformed the country is not yet fully understood and merits reflection on several key aspects of this ongoing dynamic. Continue reading >>
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28 May 2024
The Unbearable Lightness of Interfering with the Right to Privacy
The European Court of Justice has once again ruled on national data retention laws. In La Quadrature du Net II, the full court allowed the indiscriminate retention of IP addresses for the purpose of fighting copyright infringement. It seems that the Court is slowly but surely abandoning its role as guardian of the right to privacy, as it now allows member states to collect vast amounts of data on their citizens in order to solve even the most minor of crimes. Continue reading >>
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06 July 2023
Reform the European Union for Enlargement!
External shocks such as the financial and migration crises, the Coronavirus pandemic, as well as internal and external security threats from terrorism as well as Russia's war against Ukraine emphasise that the EU, which has developed to be more heterogeneous, has become increasingly fragile. In line with a reduced willingness and ability of Member States to integrate further, the EU is becoming incapable of action and therefore is in danger of losing the trust of its citizens. Against this background, it is important not to gloss over the problems and to develop constructive solutions. This blogpost offers several possible solutions. Continue reading >>12 May 2023
Squaring the triangle of fundamental rights concerns
Ex ante, the July 2022 ruling by the Court of Justice of the EU on Passenger Name Records had a very specific scope — the use of passenger name records by government agencies. Upon closer inspection, however, it has important implications for the governance of algorithms more generally. That is true especially for the proposed AI Act, which is currently working its way through the EU institutions. It highlights, ultimately, how national, or in this case European, legal orders may limit the scope for international regulatory harmonization and cooperation. Continue reading >>
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12 May 2023
Automated predictive threat detection after Ligue des Droits Humains
The Ligue des droits humains ruling regarding automated predictive threat detection has implications for the European Travel Information and Authorisation System (ETIAS) Regulation and the EU Commission’s proposal for a Regulation on combating online child sexual abuse material (CSAM). Both legal instruments entail the use of potentially self-learning algorithms, and are spiritual successors to the PNR Directive (the subject of Ligue des droits humains). Continue reading >>
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11 May 2023
EU Privacy and Public-Private Collaboration
Core state functions, such as law enforcement, are increasingly delegated to private actors. Nowhere is this more apparent than in the development and use of security technologies. This public-private collaboration harbours detrimental consequences for fundamental rights and the rule of law; in particular, for the principle of legality. The policy outcomes which result from this collaboration are not democratically accountable, and allow human rights to be superseded by private, profit-driven interests. Continue reading >>
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11 May 2023
Challenging Bias and Discrimination in Automated Border Decisions
In Ligue des droits humains, the Court of Justice of the European Union explicitly addresses the fact that the use of AI and self-learning risk models may deprive data subjects of their right to effective judicial protection as enshrined in the Charter. The importance of this judgment cannot be understated for non-EU citizens and at the European borders more generally. Continue reading >>
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10 May 2023
Foreseeability and the Rule of Law in Data Protection after the PNR judgment
The rule of law cannot be reconciled with the existence of secret laws, unclear laws and laws which cannot be obeyed. However, this may be difficult to realise in practice, where full transparency is at odds with the legislative goals; where a certain degree of flexibility of rules is necessary to address changing circumstances, in which these rules function; and where a disconnect occurs between the visions of the lawmaker and reality created by modern technologies that are utilized to pursue them. The CJEU's ruling in Lige des droits humains on Passenger Name Record Directive underscores the difficulty of foreseeability of algorithmic measures and the rule of law. Continue reading >>
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10 May 2023
The European Legal Architecture on Security
As the European legal architecture on internal security is being built around large-scale databases, AI tools and other new technologies, the relationship between the public and private sectors has become increasingly complex. We examine one aspect of the Court of Justice of the European Union’s recent judgment in Ligue des droits humains, namely the data protection rules applicable to cooperation between the public and private entities in personal data sharing. The judgment enhances the ‘personal data autonomy’ of individuals and requires public authorities to justify to a high standard any obligations it seeks to place on the private sector to share personal data related, directly or indirectly, to travel by air. Continue reading >>
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09 May 2023
Caution: Safeguards may appear more robust than they are
At a time when the European security architecture is evolving, and when national lawmakers must pay greater attention to an evolving set of common standards and safeguards to prevent disproportionate government access to data, it is essential to shed critical light on their implementation in actual practice. As different as the EU PNR Directive and the German legal framework are, they both include provisions that seek to prevent disproportionate government access and to ensure effective and independent review of data collection and subsequent data processing. Continue reading >>
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