June 15, 2020

During its 31st plenary session on 9 June 2020, the EDPB decided to:

1. establish a taskforce to coordinate potential actions and to acquire a more comprehensive overview of TikTok’s processing and practices across the EU;
2. adopted a letter in relation to the use of Clearview AI (facial recognition tech) by law enforcement authorities;
3. adopted a response to the ENISA Advisory Group appointing a representative; and
4. adopted a letter in response to an Open Letter from the European Centre for Digital Rights (NOYB).

As concerns TikTok, the EDPB said that it has already issued guidelines and recommendations that should be taken into account by all data controllers whose processing is subject to the GDPR, in particular when it comes to the transfer of personal data to third countries, substantive and procedural conditions for access to personal data by public authorities or the application of the GDPR territorial scope, in particular when it comes to the processing of minors’ data. The EDPB recalled that the GDPR applies to the processing of personal data by a controller, even if it is not established in the Union, where the processing activities are related to the offering of goods or services to data subjects in the Union.

As for Clearview AI, the EDPB shared its concerns regarding certain developments in facial recognition technologies. The EDPB noted that under the Law Enforcement Directive (2016/680/EU), law enforcement authorities can process biometric data for the purpose of uniquely identifying a natural person only in accordance with the strict conditions of Articles 8 and 10.

The EDPB has doubts as to whether any Union or Member State law provides a legal basis for using a service, such as the one offered by Clearview AI. Therefore, at the moment, the lawfulness of such use by EU law enforcement authorities cannot be ascertained. However, the EDPB is of the opinion that the use of a service such as Clearview AI would likely not be consistent with the EU data protection regime.

The EDPB announced upcoming work on the use of facial recognition technology by law enforcement authorities.

The EDPB’s response to the NOYB said that the EDPB has been “working constantly on the improvement of the cooperation between the Supervisory Authorities and the consistency procedures”. To read the EDPB’s press release in full, click here.