The EU is funding the development of a supposed “video lie detector” that would be used on travellers before entering the EU. Member of the European Parliament and civil liberties activist Patrick Breyer (Pirate Party) filed a lawsuit on 15 March 2019 for the release of classified documents on the ethical justifiability and legality of the technology.

The European Court of Justice will deliver its judgment in public in Luxembourg on 15 December 2021 at 11 am (Case T-158/19). A landmark ruling could shed light on EU-funded “security research” in general.

How is the “video lie detector” supposed to work?

The iBorderCtrl research project, funded by the EU with 4.5 million euros, aimed at developing a prototype. The idea was that people who want to travel to the EU should take a lie detector test at home in front of their webcam. Based on their facial expressions and behaviour when answering standard questions, special software would determine whether the person is telling the truth.

Whether such “deception detection” technology works is highly controversial. The only “scientific” assessments of the technology have been published by Manchester Metropolitan University (MMU), which was part of the iBorderCtrl consortium. The MMU scientists have patented the technology and are selling it commercially through a company called Silent Talker Ltd. As the technology is based on machine learning, the developers themselves say they do not know what the system assumes are signs of deception.

The EU Commission claimed in 2019: “The project proposal has been scientifically assessed by independent experts and has undergone a technical review confirming the scientific assumptions, including the statistical significance of the automatic deception detection system, based on the scientific and technological research carried out to date.” However, the EU refuses to release the “scientific evaluation”. In court, the EU research agency explained that it is not a precondition for EU funding that the methods of a project are are recognized in science.

Independent scientists fundamentally question whether the truth of a statement can be inferred from “micro-expressions”.

What are the reasons given for refusing public access to the documents?

Breyer’s request to access the ethics report, as well as to a legal assessment, to much of the project’s public relations strategy and the project’s results claiming that these documents are “commercial information” of the companies involved and of “commercial value”. The EU research agency’s lawyer explained in court: “Democratic control of research funding is not necessary”, arguing that research and development was not yet about the use of the technology. The EU research funding deliberately does not follow an open access approach in order to protect competitive advantages of the participating companies. Disclosure of the iBorderCtrl project would jeopardise the business interests and reputation of the participating companies and institutions. Public comments taken out of context could put the responsible entities under pressure and jeopardise the completion and marketing of the technology.

Breyer said: “The reasons given for the secrecy demonstrate: It is all about economical profit. Regarding this highly dangerous technology the transparency interests of the scientific community and the public must take precedence over private profit interests.”

What does Breyer criticise about the technology?

Because of the technology’s lack of reliability, countless people are at risk of being falsely accused of lying and exposed to disadvantages. Certain groups of people (for example persons of colour, women, older people, children, persons with disabilities) might be particularly likely to be falsely accused. After two parliamentary questions by Breyer (1, 2), the EU Commissioner for Home Affairs had to admit that the project did not evaluate which proportion of respondents were classified potential “liars” by the technology, what its error rate is and whether the error rate is higher for certain groups of people.

What is Breyer criticising about the technology?

Because of the lack of reliability of the technology, countless people are at risk of being falsely accused of lying and exposed to disadvantages. Experience shows that certain groups of people (for example, people with dark skin, women, older people, children, people with disabilities) may be particularly likely to be misjudged. After two parliamentary questions by Breyer (1, 2), the EU Commissioner for Home Affairs had to admit that the project did not check what proportion of respondents the technology classifies as “liars”, what their error rate is and whether the error rate is higher for certain groups of people.

Breyer: “Systems for recognising conspicuous behaviour gradually create a uniform society of passive people who just don’t want to attract attention. Such a dead surveillance society is not worth living in. I am convinced that this pseudo-scientific security hocus-pocus will not detect any terrorists. For stressed, nervous or tired people, such a suspicion-generator can easily become a nightmare. In Germany lie detectors are not admissible as evidence in court precisely because they do not work. We need to put an end to the EU-funded development of technologies for monitoring and controlling law-abiding citizens ever more closely!”

The EU Commission defends the project by referring to an independent external ethics evaluation, but refuses to release it.

EU research funds are being diverted for lobbying purposes

In April 2021, it emerged that the „iBorderCtrl“ project, which was entirely funded by the EU, used part of its funding to lobby legislators for fundamental rights restrictions which would allow the use of its controversial technology on travellers. The EU Commission tried to hide this in a partially redacted document that was reconstructed by technical means.

While the Commission publicly claimed that “iBorderCtrl was a research project and did not envisage the piloting or deployment of an actually working system”, the secret parts of the redacted “communications plan” revealed that the iBorderCtrl consortium collaborated with industry “so that [iBorderCtrl] can easily be the basis for many other applications for other target groups and even other application domains”.

The document goes on to acknowledge that “a statutory legal basis will be required” to use the “deception detection” and other technologies at borders. “To foster such legal reforms” the consortium envisaged “dissemination activities to … stakeholders” such as Members of Parliament, the Commission and border authorities.

In her answer to a written question by Patrick Breyer, the EU Commissionerfor Home Affairs, Ylva Johansson, denied the verifiable lobbying.

EU has a history of funding illegal and unethical technology

Years ago, FRONTEX had technology for video lie detection tested. Under a follow-up project to iBorderCtrl, “TRESSPASS”, the EU again funded the testing of unscientific technology to “assess the sincerity of the traveller and his statements”. In October, the European Parliament expressed “concern” about the iBorderCtrl project.

The EU keeps funding illegal and unethical surveillance research. With projects like INDECT or CleanIT, EU security research has been criticised for years. The actual extent is difficult to grasp. We have had a long list of potentially relevant research projects compiled, but evaluating them would require extensive analyses.

In order to stop the funding of technology that violates fundamental rights, fundamental changes would be necessary:

• Advisory bodies should include an equal number of representatives of all political groups, criminologists, victims’ associations and non-governmental organisations for the protection of civil liberties and privacy, in addition to representatives of national governments and industry.
• A decision on the tendering of a project should be made only after an investigation by the European Fundamental Rights Agency on the impact of the respective research objective on our fundamental rights (impact assessment).
• The development of technologies for increased surveillance and control of citizens should be excluded by law.
• Instead, security research should be extended to all crime and accident prevention options, and should include independent research into the effectiveness, costs, harmful side effects and alternatives to each proposal.
• Because perceived security is an important prerequisite for our well-being, research on how to increase public awareness of security and how to counteract distorted assessments and portrayals of the security situation should be funded as well.

These unresolved issues are exacerbated by the new EU Defence Fund, through which the EU is expanding its flow of money to the development of weapons, i.e. lethal technology.

What is the aim of the lawsuit?

Plaintiff Patrick Breyer: “The European Union is funding illegal technology that violates fundamental rights and is unethical. It labels the research a ‘trade secret’ of the corporations involved. With my transparency lawsuit, I want the court to rule once and for all that taxpayers, scientists, media and Members of Parliament have a right to information on publicly funded research – especially in the case of pseudoscientific and Orwellian technology such as the ‘iBorderCtrl video lie detector’.”

Breyer has already successfully taken the EU Commission to the European Court of Justice in the past. At the time, the Commission refused to hand over documents on indiscriminate data retention.

Relevant documents:

Official Summary of the proceedings (meeting report) (in German)

Pleading of the plaintiff’s lawyer in court (in German)

Answer given by the EU Commissioner for Home Affairs on 30/03/2020

“Open Security Data”: Search engine on EU security research

EPRS Opinion: Mechanisms to prevent unethical research and funding – Horizon and EDF

Press releases:

• 26. November 2021: Transparency lawsuit against secret EU surveillance research: Judgement on 15 December in Luxembourg.
• 29. June 2021: “Artificial intelligence” for law enforcement? European Parliament‘s Home Affairs Committee calls for ban on biometric masssurveillance
• 27. April 2021: Big brother „video lie detector“: EU research funds are misused to lobby for legislative changes
• 05. February 2021: Transparency lawsuit on secretive EU sci-fi surveillance research: Judges question non-disclosure
• 05. January 2021: Transparency lawsuit against secretive EU sci-fi surveillance research: date for court hearing set
• 23. April 2020: Patrick Breyer applies for EU research funding on Artificial Intelligence and data shadows on the Internet
• 31. March 2020: False incrimination and discrimination? EU won’t answer questions on “video lie detector” research
• 16. December 2019: EU Court to examine secrecy of lie-detector “artificial intelligence” technology

patrick-breyer.de/en/press-bri…

Today, the European Parliament’s Internal Market and Consumer Protection Committee (IMCO) adopted its report on the EU’s planned Digital Services Act. Last night, three amendments by the Civil Liberties Committee on data protection, consumer protection and legal redress were rejected and a identification requirement for publications on porn platforms was added.

MEP Patrick Breyer (Pirate Party), who has been following the negotiations as rapporteur of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), comments on the outcome:

“From a civil liberties and digital rights perspective, the outcome of the negotiations is largely disappointing. The European Parliament made groundbreaking demands last year, but it seems now that it was mostly bark and no bite. Anyone who had hoped for an end to the surveillance capitalist business model on the internet, an end to the monopoly position of a few internet corporations or the error-prone upload filter censorship machines will be disappointed. More transparency is simply not enough. Only few of the LIBE Committee‘s recommendations have been taken up.[1] This cannot be the last word. For the plenary vote in January, my committee will most likely present a whole series of amendments to protect privacy and freedom of expression.”

Pirate Party MEP Mikuláš Peksa worked on the DSA as rapporteur in the Committee on Economic on Monetary Affairs (ECON). The Czech Chairperson of the European Pirates sees a missed opportunity for constraining the power of autocratic governments, who will still be able to order the deletion of content abroad or request user information without court order:

„The central idea of the whole DSA is to modernize European access to digital services and make them more transparent, accessible, and free“, Peksa says. „Our main goal is to protect the interests of individual users and smaller players by clearly defining their rights. From our point of view, letting the authorities in each member state decide about banning ,,illegal” content is a colossal mistake which will fragmentise the market and allow authoritarians like Orbán to control the online space and oppress the opposition.“

The Pirates also see a new threat to digital privacy and security in yesterday’s decision to make publications of pictures and text on adult entertainment portals dependent on providing the operator with the uploader‘s personal mobile phone number. “Because of the foreseeable hacking and leaks of these porn uploader databases, this identification requirement virtually invites stalking and threats against sex workers, LGBTQI persons, and politically exposed and vulnerable persons. Victims of nonconsensual intimate recordings are harmed by the displacement of such material to non-EU portals, which simply ignore notifications of illegal material and requests from law enforcement. Accepting the elimination of anonymous publishing as a deterrent against objectionable content threatens to set a precedent far beyond adult entertainment.”

In detail, Breyer assesses the Digital Services Act compromises with respect to civil liberties as follows:

Upload filters

Parliament has learned from the protests against article 13/17 of the Copyright in the Digital Single Market directive, and rules out new filtering obligations in the Digital Services Act. However, the promise to ban the “voluntary” use of error-prone filters by internet platforms is not kept. In practice, therefore, nothing will change.

Data security

The promised right to anonymous internet use to put an end to the constant data leaks and misuse of data on the net is not part of the IMCO report. Government authorities would be able to request pervasive records on a person‘t online activities without a court order. At least the right to secure encryption is to be guaranteed. And service operators could not be obliged to generally and indiscriminately retain personal user data.

Surveillance advertising

The systematic monitoring and creation of personality profiles of internet users for advertising purposes is not to be banned. However, for the first time, users could generally opt out in the browser (“do not track”) and then also to be spared from annoying consent banners – an important step forward!

Freedom of information

Authorities could require the (cross-border) removal of internet publications without a court order – even if they are completely legal in the country of publication. This means that in future Orban can have content deleted throughout the EU, on the basis of his own laws. The promised ban on network-level blocking is also not part of the report. Internet platforms will not need to ask users before removing their content. At least, according to the Parliament, automatic suspension of users who have allegedly repeatedly violated copyright or other laws will not be mandated.

Interoperability

Digital corporations will continue to be allowed to decide on their own what appears in the timelines of users and what does not. Users are not given a right to opt out of the commercial recommender algorithms or use external algorithms of their own choice.

(Non-)implementation of the recommendations of the LIBE Committee (green: implemented, red: not implemented)

Adopted text (compromise amendments 1-9)

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