Saxony Police

The BigBrotherAward 2024 in the “Authorities and Administration” category goes to

the Police of the State of Saxony, represented by the Interior Minister of Saxony, Armin Schuster,

for their “Video-based Person Identification System” (short: PerIS).

Picture the scene: you walk through a city where cameras have been installed on every house, every street corner. These cameras scan the area and automatically register the number plate of every car and the faces of all passers-by. This way, the authorities can reconstruct at any time which vehicle and which citizen has been present at which time. Is this a dystopian future vision from a science fiction movie? Or an everyday scene from one of China’s major cities?

In 2019, Saxony Police – without much attention from the public – started to equip large areas bordering Poland with camera systems that are capable of electronically registering every car, and most importantly, each of their passengers.

The motivation: “Cross-border crime” was to be reined in, trafficking gangs pursued and more cases of aggravated burglary solved.

A true “Big Brother” dream

To make all this legally possible, § 59 was included in the Police Law-Enforcement Service Act (Polizeivollzugsdienstgesetz) of Saxony in 2019. § 59 regulates “the use of technological means for the purpose of preventing serious cross-border crime”. This not only refers to video recordings of vehicles – it also includes biometric scans of the persons inside them. Also, movement data of these vehicles may be registered. The police are thus enabled to track the journeys of persons “of interest”, from the comfort of the officers’ desks. The system employed is the “PerIS”, an abbreviation of “person identification system”, made by OptoPrecision from Bremen in the northwest of Germany.

“PerIS” is a Big Brother dream come true: Highly sensitive cameras can record faces through car windows, and scan them biometrically. This leads to the faces being automatically matched with photos, and identified to ascertain whether the person in question is of interest to the police. The cameras are installed on roads near the Polish border, e.g. in the cities of Görlitz or Zittau. The law does actually permit the use of these cameras up to 30 km away from the border; that is about half of the State of Saxony.

Such a continuous surveillance of passing cars does however entail that a large number of uninvolved persons will be biometrically registered, including pedestrians and cyclists. Because this constitutes a major encroachment on fundamental rights, the legal validity of § 59 was limited to the end of 2023 at the time the law was introduced.

Because there had been serious doubts on these far-reaching policing measures in Saxony from the start, some members of parliament asked the Constitutional Court of Saxony to conduct a judicial review after the law had been passed¹, to find whether these new powers were legal. This was successful: Even before the Court published its ruling, the Interior Ministry announced that PerIS in its current form would not be used any more.

That was in December 2023.

The question remains: what is now going to happen with all those cameras that were installed at the Polish border? Will they remain as dummies, as a deterrent to criminals?

Interestingly, new camera pillars were actually installed in late 2023. Was this a purchase order that could not be stopped anymore? Or are they still being used, just without a legal basis this time?

An administrative assistance hit

It was uncovered, quite by accident, that this system had aroused the desires of police forces in other states of Germany: They wanted to deploy PerIS too – but in the absence of an appropriate legal basis, an acquisition by police forces is impossible. We do however know from local media reports that a mobile, “covert” variant of PerIS – mounted in cars, or hidden in a bush – had been acquired in Saxony. This is surprising because § 59 had explicitly only allowed the use of technologies “in the open”, meaning cameras that can be recognised as such. How can that be explained?

What we do know: These devices have now become a top export – or better: a top subject of administrative assistance between the German states. Across almost the whole of Germany, the police forces of the respective states have borrowed the mobile PerIS system for their own investigations, as we are now learning bit by bit, in most cases only after questions in state parliaments.

Delayed real time

Since a legal basis for the covert use of PerIS does not exist – neither in Saxony nor in other states of Germany – a law regularly cited to justify this is § 100h II Nr. 1 of the Criminal Procedure Code (StPO) on “video observation”, which permits the use of cameras even on uninvolved persons.

But an automatic, biometric registration across a large area in real time as part of such an investigation is unconstitutional, according to legal opinions.

The so-called “retrograde” (or retrospective) biometric recognition of persons is in a legal grey area at least. Such a procedure has been used by the police of Hamburg, for example, to search for certain individuals in video recordings of street protests.

Therefore, the police bend the legal framework to suit the purpose of “real-time” biometric recognition via PerIS. The software is configured to conduct not real-time but “retrograde” recognition, “later”. What “later” actually means is not regulated anywhere. A few seconds delay seems to be enough to no longer operate “in real time”. The legal permission for “short-term” storage of images is misused in order to use these images for “retrograde” face recognition.

Continuous surveillance

Official pronouncements on the use of so-called “intensive intervention” camera systems say that these would only be used in limited investigations with a judicial order – a “continuous surveillance” would be impossible. But that same position had been taken by the police in the state of Brandenburg regarding our BBA winner in 2020, the car number plate scanner “Kesy”. Later it turned out that car number plate data had been retained on a large scale because some judicial order had almost always been in force, without any gaps over the year. A trick to make “continuous surveillance” possible after all.

What is particularly irritating is that hardly any information about the use of PerIS makes it through to the public. Even the states’ data protection commissioners know very little about this, and they are sounding the alarm. Police forces are using this information vacuum to create a lawless space for their investigations using PerIS.

The looming end of anonymity

The issue of biometric registration by cameras in public spaces, possibly even using covertly installed devices, is a politically contentious issue. Hardliners regard it as an indispensable tool in the fight against terror and serious crime. From a data protection and civil rights perspective, it is a disaster: With every camera, mostly (if not exclusively) uninvolved people are captured. Even if legal rules were in place to say that no movement data were to be recorded and uninvolved people’s data immediately deleted – in Brandenburg, nobody took notice while number plates were scanned. The database of recorded number plates grew up to millions of entries.

The sense that at any moment, one might not only be recorded by cameras but also registered and tracked, will change our society profoundly. In view of the current political shifts – not only in Saxony – one could get quite nauseous. During the negotiations on the AI Act of the European Union, civil rights organisations across Europe were up in arms against the scenario of this kind of biometric mass surveillance by governments. Sadly, there wasn’t much success. The regulation does not include an overall ban. How much protection from continuous biometric surveillance will be included in national legislation is a matter of ongoing negotiations.

One could not put it better than the former Federal Data Protection Commissioner, Ulrich Kelber (of the Social Democratic Party, SPD): “[biometric surveillance] could have grave consequences for the public’s ability to expect to remain anonymous in public spaces, which in turn would have direct, harmful effects on the exercise of the freedom of opinion, of assembly, of association, and the freedom of movement.”

We share this opinion – and therefore, biometric surveillance in public spaces must not become a normality. Neither at the Polish border nor everywhere in the EU.

Even if the brakes have now been put on the use of this system in Saxony: The BigBrotherAward 2024 goes to the Interior Minister of Saxony, because as the PerIS pioneer he gave us a taste of what we might soon be facing in the EU if the parties in power will not significantly restrict the use of biometric control.

Congratulations, Mr Armin Schuster.