Same words, new world: Controlling remote biometric surveillance in an age of illiberalism

This thesis analyses the control mechanisms over law enforcement’s use of remote biometric identification systems (RBIS) as stipulated in the AI Act. The analysis specifically focuses on controlling the risk of a “strategic interpretative expansion of legal bases”, that is, when a legal framework is interpreted increasingly broadly by illiberal players in an attempt to further their agenda. This happens within the context of autocratic legalism, wherein these players use legal means to hollow out a state’s democratic core. Throughout the analysis, the argument is illustrated by the example case of an increasing use of RBIS against climate activists by expanding the legal basis of “forming a criminal organization” based on section 129 of the German Criminal Code. Based on the analysis, several criteria are identified for a control framework to sufficiently safeguard against this risk. These criteria taken together form the “RBIS Control Framework”, an enhanced control system recommended for implementation in Germany. The framework’s normative basis is liberal constitutionalism, a strategy to counter the agenda of autocratic legalists by moving beyond legal positivism to a fundamental-rights-oriented interpretation of the law.