Chamber I rejected the appeals submitted by the City Government and the Public Prosecutor’s Office and upheld City Administrative Judge Elena Liberatori’s decision in September 2022, which stated that the SRFP was implemented without due protection of inhabitants’ rights.
In its ruling, the Court established that the City Government cannot reinstate the operation of the SRFP until a series of requirements have been met:
1. Establishment and proper functioning of oversight bodies;
2. The necessary investigations must be carried out to determine whether the system has a differentiated impact depending on the personal features of the affected individuals;
3. The system should be publicized and its operation should be reported.
The lack of oversight of the system facilitates the infringement of the right to privacy, the illegitimate restriction of freedom of movement and the principle of innocence. It also enables the illegal use of personal data and arbitrary detentions. As a result of this lack of oversight, the system was used illegally to search for more than 15,000 people who were not listed as fugitives by the National Consultation on Rebellions and Captures (CONARC). By law, the SRFP must be used exclusively to search for people on that list.
It is therefore urgent that the State comply, at the very least, with the conditions stipulated for the use of this type of technology solely for the search of fugitives ordered by the Judiciary. And it must provide mechanisms for broad discussion regarding the system’s effects.
The complaint and the legal process
In 2020, ODIA initiated an amparo action in which it challenged the constitutionality and legality of the regulations under which the facial recognition system was implemented in the City of Buenos Aires. The filing pointed out that this system works with programs that make a comparison of the biometric features of two faces, most of which “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 took part in 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 measures to decide whether or not to suspend the system during the trial proceedings. He did so after an inspection was conducted at the Urban Monitoring Center where the system operates. He first requested the lists of wanted persons from CONARC. He then asked the National Registry of Persons (ReNaPeR) for the list of persons whose biometric data had been migrated to the City Government. This revealed that the City Police had made almost 10 million queries on 7.5 million people.
At the beginning of July 2022, an expert report also 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 list or those named in a court order. In this context, when the results of the expert report provided the necessary conditions for the judge to issue a decision, Gallardo was recused by the Superior Court of Justice. Judge Liberatori remained in charge of the case, and in September 2022 she ruled that the implementation of the SRFP by the Buenos Aires government was unconstitutional, a ruling that was confirmed by the Court of Appeals on April 28.