The biometric habeas data in the digital and algorithmic era in the European Union

Abstract

The advent of artificial intelligence and of the Big Data has affected the use of biometric data in the digital and algorithmic era, posing some critical challenges, especially in relation to the risk of surveillance, data scraping and profiling. In this context, the emergence of a novel “informationally projected corporality” requires law to rethink its approach to data protection and to define an Habeas Data for this transformation, and, in this sense, the European Union (EU) has been demonstrating to be a global leader. Under this premise, the purpose of this paper is to explore the relevant primary and secondary EU law sources, in order to provide a critical assessment of their role with respect to the challenges related to the protection of biometric data in the digital and algorithmic era. In light of this reflection, the paper develops some final considerations. In particular, it takes the view that the EU, so far, has defined a significant framework for the protection of the regional Habeas Data with respect to biometric data. However, the most pioneering change is still to come. In this respect, the paper suggest that the AI Act Proposal has the potential for bridging the current legal landscape and the future horizons of EU law and its biometric Habeas Data. Some reference is made to justiciability and to the role that the Court of Justice of the European Union (ECJ) may play, also by promoting judicial dialogue with the European Court of Human Rights (ECtHR). From the methodological viewpoint, an in-depth analysis of the relevant EU law sources and of the relevant case law of the ECJ was carried out, and some critical comparison with the jurisprudence of the ECtHR was made. Moreover, scholarship in English, Spanish and Italian was widely explored.