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The era of pre-crime: How mass data surveillance and predictive policing intersect and interfere with privacy, data protection and due process rights in the EU

Publication date: 2023-09-27

Author:

Vogiatzoglou, Plixavra
Valcke, Peggy ; Royer, Sofie

Abstract:

The thesis focuses on frameworks of mass data surveillance for predictive policing purposes and questions their lawfulness under EU primary law. Mass data surveillance refers to the general and untargeted processing of various types of personal data initially collected by the private sector, for safeguarding national and public security and combatting serious crime and terrorism. In the EU, such mass data surveillance frameworks engage at least three private sectors: electronic communications (under the e-Privacy Directive), air travelling (under the Passenger Name Records Directive) and finance (under the Anti-Money Laundering Directive). Albeit adopted in the context of combatting crime at large, these measures rely on different EU competences and are increasingly deployed for the purpose of predicting and preventing crime before it occurs through the use of predictive policing technologies. As such, these measures pose distinct risks for citizens' rights and society, challenging their legitimacy under EU primary law. While the Court of Justice of the EU has developed a rich body of case law seeking to regulate data surveillance, in close dialogue with the European Court of Human Rights, several questions remain. Against that background, the objective is to evaluate whether, and if so, how, mass data surveillance for predictive policing practices may be lawfully established in the EU, in light of the EU powers to provide security whilst in parallel safeguarding fundamental rights such as privacy, data protection, effective remedy, fair trial and presumption of innocence. To that end, the research investigates the role of security in legitimising the adoption of crime prevention measures and critically evaluates the EU legislation on mass data surveillance, as well as the judicial response to such practices. It further provides an in-depth analysis of what constitutes an interference with the selected fundamental rights and how said interference should be justified in line with the Charter of Fundamental Rights of the EU and the European Convention on Human Rights. The thesis identifies inconsistencies in the legitimisation behind the promotion of such pre-crime measures and deficiencies in safeguarding fundamental rights against these novel risks. Finally, recommendations are formulated for the EU legislator and judiciary to address these legal lacunae and shield the affected fundamental rights and society at large more comprehensively and durably.