'Glukhin v. Russia' by Monika Zalnieriute in (2023) 117(4) American Journal of International Law 695-701 comments
Glukhin v Russia is the first ECtHR decision on the use of FRT; it portends a strong foundation for further restricting how governments use FRT. For two reasons, however, there is little certainty as to the future of the ECtHR’s approach to mass FRT-surveillance in public spaces. First, the ECtHR tends to focus heavily on procedural safeguards - what I have called its procedural fetishism; and second, the case concerned Russia – a former Member State of the Council of Europe. In this case note, I argue that ECtHR’s trend towards procedural fetishism is particularly dangerous, for it legitimizes mass FRT-surveillance in public spaces, including when used to tackle protest movements globally.
On July 4 2023, the Third Section of the European Court of Human Rights (ECtHR) ruled in Glukhin v Russia, that administrative conviction for a protester’s failure to notify Russian authorities of his intention to hold a solo demonstration, and the use of facial recognition technologies (FRT) to convict the protester, violated his rights to a private life and freedom of expression, guaranteed under Articles 8 and 10 of the European Convention on Human Rights (‘the Convention’ or ‘ECHR’). The use of FRT enabled authorities to track down the Russian national and arrest him within seven days of the alleged offence. Mr Glukhin was arrested, with CCTV and social media footage being used in administrative proceedings against him. The ECtHR found that the Russian Government’s actions violated Articles 8 and 10 of the Convention.
This is the first ECtHR decision on the use of FRT; it portends a strong foundation for further restricting how governments use FRT. For two reasons, however, there is little certainty as to the future of the ECtHR’s approach to mass FRT- surveillance in public spaces.
Zalnieriute's 'Against Procedural Fetishism: A Call for a New Digital Constitution' in (2023) 30(2) Indiana Journal of Global Legal Studies argues
Digital constitutionalism, to date, has been proceduralist; it has assumed that transparency and due process can temper power and attain justice for people vis-à-vis the automated state and powerful tech companies. So far, digital constitutionalism has also been very soft and blind to its own coloniality: Instead of deploying hard law, we are still looking for ways to pressure digital behemoths to self-regulate. We downplay US dominance, colonial exploitation, and environmental degradation caused by digital imperialism. Meanwhile, the power of tech companies has escalated. They now influence many aspects of our public and private lives, from elections to our own personalities and emotions, to environmental degradation. To be successful, the project of digital constitutionalism must resist a corporate agenda of procedural fetishism, a strategy to redirect the public from more substantive and fundamental questions about the concentration and limits of power to procedural microissues. Such diversion merely reinforces the status quo.
To rectify the imbalance of power between people and tech companies, a new digital constitution must therefore try something different. It must shift its focus from soft law initiatives to tangible legal obligations by the tech companies. We must redistribute wealth and power not only by breaking and taxing tech companies, fortifying regulatory enforcement, increasing public scrutiny, and adopting prohibitive laws but also by democratizing big tech by making them public utilities and giving people a say how these companies should be governed. Crucially, we must also decolonize digital constitutionalism through recognition of colonial practices of extraction and exploitation and paying attention to the voices of Indigenous peoples and communities of the so-called Global South. With all these mutually reinforcing efforts, a new digital constitution will debunk the corporate and state agenda of procedural fetishism and will establish the new social contract for the digital age.,
