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ABSTRACT
The paper approaches preventive justice and big data from a predictive policing point of view. Predictive policing is a controversial technology because of the many risks it imposes on fundamental rights. Through use cases from the EU, the paper focuses on how the implementation of predictive policing technologies has been limited in the EU but also how difficult the limitations might be due to the high hopes set upon technology. Although predictive policing technologies are not yet used in Finland by the police, the paper discusses how the use of police powers is limited in Finland and how fundamental rights control in the democratic process will work if the police were willing to adopt such technology.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Andrew Ashworth and Lucia Zender, Preventive Justice (OUP 2014) 6.
2 See in general Richard V Ericson, Crime in an Insecure World (Wiley 2007).
3 E.g. David Garland, The Culture of Control (The University of Chicago Press 2001); Zedner and Ashworth (n 1); Rosamunde van Brakel and Paul De Hert, ‘Policing, Surveillance and Law in a Pre-crime Society: Understanding the Consequences of Technology-based Strategies’ (2011) 20(3) Cahiers Politiestudies Jaargang 163.
4 This phenomenon could be seen connected to technological normativity. See Mireille Hildebrandt, ‘Legal and Technological Normativity: More (and Less) than Twin Sisters’ (2008) 12 Techne 169.
5 In Europe e.g. Harm Assessment Risk Tool, ‘HART' that is used in the UK.
6 E.g. Compas algorithm used in the United States.
7 Another question is the usage of predictive policing prediction later as evidence if a crime has actualised.
8 Andrew Guthrie Ferguson, ‘Predictive Policing and Reasonable Suspicion’ (2012) 62 Emory LJ 259, 265.
9 Walter L Perry, Brian McInnis, Carter C Price, Susan C Smith, and John S Hollywood, Predictive Policing: The Role of Crime Forecasting in Law Enforcement Operations (1st edn, RAND Corporation 2013) 29.
10 These concepts are used in Amnesty International Netherlands, Meeting report: PHRP Expert Meeting on Predictive Policing. 20–21 May 2019.
11 See examples in ‘Automating Injustice’ (Fair Trials, 9 September 2021) <www.fairtrials.org/app/uploads/2021/11/Automating_Injustice.pdf> accessed 29 March 2023.
12 ibid.
13 See European Security Union, ‘the EU Security Union Strategy from 2020 to 2025: Communication from the Commission on the EU Security Union Strategy’ COM (2020) 605 final.
14 Judgment of 16 February 2023 1 BvR 1547/19, 1 BvR 2634/20. See the press release: Legislation in Hesse and ‘Hamburg Regarding Automated Data Analysis for the Prevention of Criminal Acts Is Unconstitutional’ (Bundesverfassungsgericht, 16 February 2023) <www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2023/bvg23-018.html> accessed 29 March 2023.
15 Mika Sutela, ‘Tiedon, analyysin ja analytiikan hyödyntämisen tarve poliisissa – ilmeinen ja suuri?’ [The Need for the Police to Use Information, Analysis and Analytics – Obvious and Great] (Polisi, 15 September 2020) <https://poliisi.fi/blogi/-/blogs/tiedon-analyysin-ja-analytiikan-hyodyntamisen-tarve-poliisissa-ilmeinen-ja-suuri-> accessed 29 March 2023; ‘The Expert Opinion of the National Bureau of Investigation on Data Processing in the Police (Polisi, 10 January 2019) <www.eduskunta.fi/FI/vaski/JulkaisuMetatieto/Documents/EDK-2019-AK-236903.pdf> accessed 29 March 2023.
16 Ministry of the Interior, ‘Finland’s Strategy on Preventive Police Work 2019–2023’ (Publications of the Ministry of the Interior, 2019 11) 37: ‘Major investments are being made in the development of automation and artificial intelligence in Finland and other countries and using such applications in different tasks is still in its initial stages’ <https://julkaisut.valtioneuvosto.fi/bitstream/handle/10024/161343/SM_11_19_Strategy%20on%20preventive%20police%20work.pdf?sequence=1&isAllowed=y> accessed 29 March 2023. See more Vesa Syngelmä, Ennustamisteknologioiden hyödyntämismahdollisuudet osana ennakoivaa poliisitoimintaa [The Opportunities for Using Predictive Technologies as a Part of Predictive Policing] (University of Tampere 2021) <https://trepo.tuni.fi/handle/10024/130523> accessed 29 March 2023 (only available in Finnish). In his master’s thesis Vesa Syngelmä has conducted qualitative research on whether predictive policing is actually to be used in Finland by interviewing police officers. The research concluded that predictive technologies are not currently in used in Finland.
17 EU, ‘Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL LAYING DOWN HARMONISED RULES ON ARTIFICIAL INTELLIGENCE (ARTIFICIAL INTELLIGENCE ACT) AND AMENDING CERTAIN UNION LEGISLATIVE ACTS’, COM/2021/206 final.
18 Max Weber, Hans Gerth, Charles Wright Mills, and Bryan S Turner, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (Routledge 2009 78).
19 Elizabeth E Joh, ‘Feeding the Machine: Policing, Crime Data, & Algorithms’ (2017) 26 Wm Mary Bill Rts J 287.
20 Joh (n 20) 287; Beth Pearsall, ‘Predictive Policing: The Future of Law Enforcement?’ (2010) 266 NIJ Journal 16.
21 Janet Chan and Lyria Bennet Moses, ‘Is Big Data Challenging Criminology?’ (2016) 20(1) Theoretical Criminology 24.
22 E.g. Opinion of the European Economic and Social Committee on ‘Artificial intelligence—The consequences of artificial intelligence on the (digital) single market, production, consumption, employment and society’ (own-initiative opinion) 2017/c 288/01, sections 2.1 ja 2.3.
23 ibid.
24 Michal S Gal, ‘Algorithmic Challenges to Autonomous Choice’ (2018) 25(1) Michigan Telecommunications and Technology Law Review 59, 65.
25 Peter Flach, Machine Learning: The Art and Science of Algorithms that Make Sense of Data (Cambridge University Press 2012) 3.
26 Joh (n 20) 289.
27 Mittelstadt et al, ‘The Ethics of Algorithms: Mapping the Debate’ (2016) July–December Big Data & Society 1, 5.
28 Lindsey Barrett, ‘Reasonably Suspicious Algorithms: Predictive Policing at the United States Border’ (2017) 41(3) NYU Review of Law & Social Change 327, 340–41.
29 Riikka Koulu, ‘Digitalisaatio ja algoritmit – oikeustiede hukassa?’ (2018) 7–8 Lakimies 840–67, 858–59.
30 ibid 859.
31 For detailed discussion on the opacity, see Barrett (n 29).
32 E.g. Compas in the US.
33 Frank Pasquale, The Black Box Society (Harvard University Press 2015) 3.
34 Kroll et al, ‘Accountable Algorithms’ (2017) 165(3) University of Pennsylvania Law Review 633, 638.
35 Barrett (n 29) 344.
36 ibid 343; Danielle Keats Citron, ‘Technological Due Process’ (2008) 85(6) Washington University Law Review 1249, 1271–72. Linda Skitka et al, ‘Automation Bias and Errors. Are Crews Better Than Individuals?’ (2000) 10(1) The International Journal of Aviation Psychology 85, 86: ML Cummings, ‘The Social and Ethical Impact of Decision Support Interface Design’ in Waldemar Karwowski (ed), International Encyclopedia of Ergonomics and Human Factors (Vol I, 2nd edn, Taylor & Francis 2006) 1249, 1250; Andrew Guthrie Ferguson, ‘Policing Predictive Policing’ (2017) 94 Wash U L Rev 1109, 1178.
37 EU, Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
38 EU, Directive 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.
39 EU, Directive 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.
40 Art 6
41 Government Proposal on the PNR legislation (HE 55/2018 vp) 26–27.
42 Charter of Fundamental Rights of the European Union [2000] OJ C364/1, Arts 7 and 8.
43 ibid para 111.
44 ibid paras 117, 122.
45 ibid para 152.
46 For instance, Finland chose to apply the directive both to intra- and extra-EU flights.
47 ibid para 174.
48 ibid para 123.
49 ibid para 194.
50 The ‘Europol’s big data challenge' originates from the EDPS DECISION of 17 September 2020.
51 Europol was originally established on the COUNCIL ACT of 26 July 1995 drawing up the Convention based on Art K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention).
52 Europol Convention [1995] OJ C316/2, Arts 2 and 3.
53 Recital 3 of the Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA. The recital notes that this aim was laid down already in the Stockholm Programme (2010), which is a five-year political, strategic document describing the focus of cooperation in the policy areas of justice and home affairs of the EU Member States for the years 2010–2014.
54 ibid.
55 ibid Ch IV.
56 Art 8: Protection of personal data – data should be processed fairly and for specified purposes and on the basis of consent or some other lawful basis.
57 EDPS, ‘DECISION of 17 September 2020 relating to EDPS own inquiry on Europol’s big data challenge’ section 2.3 (EDPS, 18 September 2020) <https://edps.europa.eu/sites/default/files/publication/20-09-18_edps_decision_on_the_own_initiative_inquiry_on_europols_big_data_challenge_en.pdf> accessed 29 March 2023.
58 ibid section 1.1.
59 ibid sections 4.7–4.9.
60 As the EDPS notes: ‘The nature of the data collected at national level in the context of criminal investigations and criminal intelligence operations is not limited anymore to targeted data collection but also increasingly includes the collection of large datasets. More digital content is generated and thus available for law enforcement in the context of criminal investigations, which, in turn, impacts the methods used to produce criminal intelligence' ibid section 3.9.
61 ibid section 4.10.
62 Europol’s correspondence 16 October 2020 <www.europol.europa.eu/cms/sites/default/files/documents/Public%20version%20of%20EDOC%20%231133469.pdf> accessed 29 March 2023.
63 COM (2020) 796 final Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2016/794, as regards Europol’s cooperation with private parties, the processing of personal data by Europol in support of criminal investigations, and Europol’s role on research and innovation.
64 Proposal Section 5. Other elements.
65 EDRI, ‘Letter to Policymakers on Europol’ (EDRI, 26 January 2022) <https://edri.org/wp-content/uploads/2022/02/Letter-to-Policymakers-on-Europol.pdf> accessed 29 March 2023.
66 EDPS, Decision on the retention by Europol of datasets lacking Data Subject Categorisation (Cases 2019-0370 and 2021-0699) <https://edps.europa.eu/data-protection/our-work/publications/investigations/edps-orders-europol-erase-data-concerning_en> accessed 29 March 2023.
67 See EDPS, ‘EDPS Takes Legal Action as New Europol Regulation Puts Rule of Law and EDPS Independence Under Threat’ (EDPS, 22 September 2022) <https://edps.europa.eu/press-publications/press-news/press-releases/2022/edps-takes-legal-action-new-europol-regulation-puts-rule-law-and-edps-independence-under-threat_en> accessed 29 March 2023.
68 Case T-578/22: Action brought on 16 September 2022 — EDPS v Parliament and Council.
69 COM(2021) 206 final.
70 ibid Annex III.
71 European Parliament resolution of 6 October 2021 on artificial intelligence in criminal law and its use by the police and judicial authorities in criminal matters.
72 See EDRI, ‘Secret Negotiations About Europol: The Big Rule of Law Scandal’ (EDRI, 31 January 2022) <https://edri.org/our-work/secret-negotiations-about-europol-the-big-rule-of-law-scandal/> accessed 29 March 2023.
73 In Finland, Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, the ‘Law Enforcement Directive' has been implemented into the Act on the Processing of Personal Data in Criminal Matters and in Connection with Maintaining National Security (1054/2018). In addition, there are distinct acts for personal data processing by different law enforcement authorities which complement the aforementioned: Act on the Processing of Personal Data by the Police (616/2019), Act on the Processing of Personal Data by the Border Guard (639/2019), and Act on the Processing of Personal Data by the Customs (650/2019).
74 The Government proposal on the Police Act (HE 224/2010 vp) 72; Decision of the Deputy-Ombudsman of the Parliament (EOA 1634/4/01) 18 December 2003 <www.oikeusasiamies.fi/r/fi/ratkaisut/-/eoar/1634/2001> accessed 29 March 2023.
75 In subsection 2, the provision adds that ‘A person may be apprehended if his or her removal is likely to be an inadequate measure and the offence cannot otherwise be prevented or the disturbance or danger otherwise removed’. The period of apprehension can last maximum 24 hours.
76 The Government proposal on the Police Act (HE 224/2010 vp).
77 Police action shall be reasonable and proportionate with regard to the importance, danger and urgency of the duty; the objective sought; the behaviour, age, health and other specifics of the person targeted by the action; and other factors influencing the overall assessment of the situation.
78 The police shall not take action that infringes anyone’s rights or causes anyone harm or inconvenience more than is necessary to carry out their duty.
79 The police may exercise their powers only for the purposes provided by law.
80 Subsection 1: The police have the right to refrain from taking an action if completion of the action could lead to an unreasonable conclusion compared with the outcome sought.
81 Government proposal to amend the fundamental rights provisions of the Constitution (HE 309/1993 vp) 26.
82 Previously the assessment has focused on automated decision making in administration, e.g., in taxation and immigration services.
83 According to the Section: If the application of a statutory provision in the case before the court would be manifestly unconstitutional, the court must give preference to the constitutional provision.
84 If a provision of an ordinance or other subordinate legislation is contrary to the Constitution or other law, it may not be applied by a court or other authority.
85 Section 21: Everyone has the right to have their case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.
86 which implements the Law Enforcement Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA
87 Oikeusministeriö Justitiministeriet, ‘Tietosuojalain ja rikosasioiden tietosuojalain muuttaminen’ (Oikeusministeriö Justitiministeriet, 14 February 2023) <https://oikeusministerio.fi/hanke?tunnus=OM016:00/2023> accessed 29 March 2023.