The facial recognition system is active in a public place. It frames faces, captures them, compares them. But the public prosecutor has not authorized the operation or the prescribed terms have not been respected. The rule, in the draft decree on artificial intelligence in police activities, seems clear: the use is “immediately stopped and all personal data, results and outputs acquired and produced are deleted.”
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It seems so. Because immediately after, the rule opens a door: “subject to elements legitimately acquired under another legal basis.” Which one? And in which cases can images collected without the required authorization be retained? The draft, except for a reference to Legislative Decree 51 of 2018 on the processing of personal data in police activities, does not clarify this. And here the risk of a regulatory gap on the management of biometric data emerges.
AI Act and facial recognition: the issue of Article 8
The point is contained in Article 8, paragraph 8, of the draft approved on August 4 by the Council of Ministers. It is the legislative decree called to adapt the Italian system to EU Regulation 2024/1689, the so-called AI Act, also regulating the use of artificial intelligence in police activities.
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Real-time biometric recognition is allowed, but within strict limits. The formulation adopted by the government, however, leaves open a decisive passage: the fate of data that must not be deleted because “legitimately acquired under another legal basis.”
The draft does not explicitly identify the cases. It only refers to Legislative Decree 51 of 2018, which regulates the processing of personal data by competent authorities for the purposes of prevention, investigation, ascertainment, and prosecution of crimes. The concrete scope of the exception, however, remains to be defined.
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