Patrick Breyer, a digital rights activist and European parliamentarian, plans to launch an appeal to gain access to documents held by the European Commission regarding a controversial emotion recognition technology project known as iBorder Ctrl, a move likely to be supported by journalism communities across Europe. The appeal, which he intends to file to the Court of Justice of the European Union no later than 25 February 2022, seeks to overturn the 15 December 2021 General Court’s decision that denied the existence of an overriding public interest justifying disclosure of some of the documents Mr Breyer’s asked to access.
The appeal’s outcome will set an important precedent about the levels of transparency that the EU must uphold when pursuing technological innovation as a means of border control, or any other controls over people in the EU. It will also shed light on possible intrusions into the right to privacy and have an impact on journalists’ ability to carry out their jobs and report on matters of public interest.
Background to the case
The case dates back to November 2018, when Patrick Breyer asked the EU’s Research Executive Agency (RAE) for access to documents related to the iBorderCtrl research project, which has received 4.5 million euros’ funding from the EU. It included the development of a ‘video lie detector’ based on ‘artificial intelligence’ to be used on people travelling to the EU and to detect whether people are lying when answering questions. He asked the REA for the project’s preliminary results, ethics report and legal assessment. The European Commission denied access to the information on grounds that the disclosure would undermine the protection of the commercial interests of the consortium of companies developing the technology for the project.
Breyer calls into question the scientific veracity of ‘visual lie detection’ and other related technologies the iBorderCtrl project considers, citing extensive research on the individual technologies. This was also challenged by ARTICLE 19, which called for a total ban on the design, development, sale, and use of emotion recognition technologies with immediate effect.
In its verdict of 15 December 2021, the General Court established that a number of access requests denied to Breyer by the REA were not sufficiently justified by the REA. However, although on the one hand, the Court has recognised that there was a public interest in the democratic oversight of the development of surveillance and control technologies, on the other it 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 this transparency is in place at the outset of any such projects, not once the innovations and research had been completed.
Breyer claims it is in the public interest that details about projects like the iBorderControl software being researched and developed in the EU should be transparent, that healthy debate about these kind of projects should be encouraged from the early research phase, and that European taxpayers deserve to know about any technology initiatives they are funding, especially controversial ones.
Possible implications for journalists’ right to access information
ARTICLE 19 stands behind Patrick Breyer, commending his efforts to uphold the right to access to information held by EU bodies. Journalists play a central role in initiating and stimulating public debates, but face constant challenges in accessing information from public bodies, particularly when that information relates to sensitive issues, such as the development of controversial technologies that have an impact on the enjoyment of human rights.
The right of access to information and access to information laws have become a crucial tool in this context. They guarantee journalists access to information held by public bodies for their stories and investigations, enabling them to exercise their role as public watchdogs in democratic societies.
The EU’s access to information law (Regulation 1049/2001) ensures the right to access documents held by EU institutions. While it has historically represented a cornerstone in the EU’s transparency commitments, it is now 20 years old and no longer reflects the development and realities of modern communications. As a key tool to ensure openness, accountability and good governance, the law should be updated extensively in order to allow European citizens, but also public watchdogs including journalists, to actively participate in the development of controversial technology developed with EU funds from the early stages of these projects. The EU Ombudsman called for modernisation of the Regulation in 2021.