The use of the facial recognition system in Buenos Aires was declared unconstitutional
This was determined by Judge Liberatori in a ruling that confirms that it was managed outside the rules that regulate it and without control mechanisms, in the same line as the CELS’ complaint.
The Administrative Judge of the City, Elena Amanda Liberatori, declared the unconstitutionality of the System of Facial Recognition of Fugitives (SRFP in Spanish) implemented by the Government of the Autonomous City of Buenos Aires (CABA).
According to the ruling, the CABA government used the system “without complying with the legal requirements for the protection of the personal rights of the inhabitants of the City”.
This is a consequence of a) the failure to constitute the Special Commission in the CABA Legislature; b) the lack of reports from the CABA Ombudsman’s Office; c) the lack of an impact study on the rights of citizens prior to the implementation of the SRFP; d) failures in the databases from which the SRFP is fed, and e) the exclusion of citizen participation.
It is worth clarifying that the SRFP has no relation whatsoever with the recognition system used for criminal investigations.
As a result of this lack of control, the system was used illegally to search for more than 15,000 people who were not on the list of fugitives of the National Consultation of Rebellions and Captures (CONARC in Spanish). By law, the SRFP must be used exclusively to search for these people.
This lack of controls makes it possible to affect the right to privacy and enables the illegal use of personal data and arbitrary arrests, among other issues.
The expert reports ordered by the Court confirmed that, despite what the Government of Buenos Aires claimed, the SRFP was operating sporadically during the pandemic. And that there was information that was manually deleted.
The ruling confirms what CELS and the Argentinean Informatic Law Observatory (ODIA in Spanish) had denounced: the facial recognition system of the autonomous city of Buenos Aires was managed outside the regulations and without control mechanisms.
The complaint and the process
In 2020, ODIA initiated an Amparo action in which it challenged the constitutionality and conventionality of the rules that implemented the facial recognition system in the CABA. The filing pointed out that this system works with programs that make a comparison of biometric characteristics of two faces and that most of them “present biases in that they discriminate by race, color, and ethnicity”. They also considered that the City Government had not carried out an assessment of the impact of the system on the privacy of individuals.
CELS was a party to this collective process, and we considered, in line with what ODIA had stated, that the system unnecessarily and disproportionately increased the risk of arbitrariness. In addition, we pointed out the weakness and absence of mechanisms to control the flow of information.
In this process, the judge in charge of the Amparo, Andrés Gallardo, ordered the suspension of the system while the trial continued. He did so after conducting a verification at the Urban Monitoring Center where the system operates. On the one hand, he requested the lists of wanted persons from CONARC. On the other hand, he asked ReNaPeR for the list of people whose biometric data had been migrated to the City Government. It found that the City Police had made almost 10 million queries on 7.5 million people.
In early July of this year, an expert report revealed, among other serious irregularities in the management and use of the data, that the City government had violated Law 5688, which establishes that the facial recognition system can only be used to search for people included in the CONARC or those who appear in a court order. In this context, when the results of the expert report gave the necessary conditions for the judge to issue a sentence, Gallardo was recused by the Superior Court of Justice. Judge Libertori was left in charge of the case, and now determined the unconstitutionality of the implementation of the SRFP by the government of the autonomous city of Buenos Aires.
