It concerns a database with 8 million facial photos of at least 6.5 million people who are registered in the aliens administration. This includes expats, asylum seekers and foreign students who come to the Netherlands from outside the European Union.
These people are obliged to have a passport photo taken, for example for their residence permit. Unbeknownst to them, a copy of it goes to a police system. The police use the huge face database in situations where a suspect is on screen, but the investigative services do not know who that is. Police use facial recognition to identify the suspect.
Passport photos from the aliens administration have been used for this system for years. The question is whether that is allowed.
‘Foreigners treated as suspects’
Experts in the field of immigration and human rights, among others, say that the police are breaking the law by widely including facial photos of – in principle – innocent foreigners in a police system.
The potentially illegal migrant face database sits alongside another police face database. It lists more than 1.2 million Dutch and foreign nationals who have actually been identified as suspects by the police, or who have been convicted of a criminal offence. This database contains 2.7 million photos and is therefore much smaller than the database of foreigners who have in principle never been associated with crime.
“With these two databases, the police treat foreigners the same as suspects,” says Fieke Jansen of Cardiff University (UK), where she studies police use of technology. “Only because they came to the Netherlands from outside the European Union for work, study, a loved one or as a refugee. If they had done something wrong, they would have been in that other database.”
‘My face is no longer mine’
“It was very windy, so I had a bad hair day,” Tammy Brazzoli recalls of the day she was on her way to a counter of the Immigration and Naturalization Service (IND) in Rotterdam. Brazzoli and her husband had just moved from South Africa to the Netherlands. The IND wants her to come by to have a facial photo taken and to provide fingerprints.
Your hair messed up: that comes at a bad time when you have an official face photo taken for the aliens administration. Other than that, Brazzoli didn’t think much about it. For her, the visit to the IND was a simple administrative procedure to become part of Dutch society.
What Brazzoli was not told that day is that a copy of all those face photos will go to a huge police database of faces.
“The Netherlands is fantastic,” says Brazzoli. “Compared to South Africa, everything is so well organized here. That creates high expectations. Now my face appears to be in a police system. I am disappointed. It is as if my face is no longer mine.”
CATCH
The police use the millions of passport photos from the aliens administration for CATCH, a system to trace suspects using facial recognition. That has been happening since 2016, without Brazzoli and hundreds of thousands of other immigrants over the years being told.
See how CATCH works in this video:
The police may only search the database of foreigners’ faces with permission from an examining magistrate. It checks whether a criminal investigation is proceeding lawfully. The police inform RTL Nieuws that this happened in two cases in 2022.
“That shows the restraint of use,” says a police spokesman. “Because it only concerns two cases, we do not make any statements about the results or the type of cases in connection with traceability.”
“I understand that the police want to fight crime with this,” says South African Brazzoli. “But why isn’t everyone in it? It feels like discrimination.”
‘Police have bias’
Anania Sorri Guta also feels discriminated against. The journalist from Ethiopia left the country in 2017 after spending four months in jail for critical reports about the government. He came to the Netherlands and applied for asylum.
“The police choose to use these two databases side by side,” he says. “There is a prejudice in that: foreigners are just as criminal. Normally you are innocent until proven guilty. For us it is the other way around. Even though facial recognition technology is neutral, we are seen as criminals in advance.”
The American student Taylor Womack, who is following a course in Utrecht, sees it as a way in which foreigners are monitored more closely. “I imagine a lot of people are uncomfortable with it.”
He was also not told that the passport photo for his residence permit also ends up in a police system. “You expect the government to be transparent about this and accountable,” he says. “We’re clearly being treated differently. If the goal really is to solve crime, why isn’t everyone’s face in it?”
They have a point, says Evelien Brouwer of Utrecht University. She is an expert on the intersection of law, migration and technology. “The police stigmatize innocent expats, asylum seekers and students from outside Europe. They are treated the same as suspects in advance. This is discrimination.”
Face recognition is very sensitive
Facial recognition is a particularly sensitive technology. A face reveals much more than a fingerprint. Faces can tell you your gender, indicate your age, and indicate your skin color. All ways in which the technology or the user can (unintentionally) discriminate.
Unlike fingerprints, face matching can never be 100 percent certain that a face belongs to a particular person. People can look alike, even if they aren’t twins. Research also shows that facial recognition algorithms often have trouble with darker skin tones. Cases are known abroad of people who have been wrongly arrested.
Facial recognition has another risk: you can use it to check people on a large scale. There are cameras in many places, which in theory can also be linked live to face databases in order to follow (certain groups of) people everywhere. You can’t do that with fingerprints.
Big doubt if it’s allowed
The law states when the police may consult fingerprints from the aliens administration for investigations. The police use that arrangement to also search facial photos.
According to the Ministry of Justice and Security, which includes the police, the so-called legal basis has been arranged, because the conditions ‘regarding fingerprints are in practice applied in the same way to facial images’.
“That goes way too fast,” says Heleen Janssen of the University of Amsterdam. She is an expert in the field of technology and (human) rights and spent years testing for ministries whether laws were well put together. “The law indicates exactly what the police can use. Faces are really not the same as fingerprints. It is problematic that the ministry sees it that way.”
Other legal experts who spoke to RTL News also doubt whether the police are complying with the law. Even the Dutch Data Protection Authority, the regulator that checks whether the government adheres to the privacy rules, questions the practice.
The Court of Justice of the European Union published a ruling last week that did not work out in favor of the ministry and the police. The highest European court made it clear that these types of police databases are only allowed if the law is ‘sufficiently clear and precise’.
“The response of the ministry proves that the legal regulation is very unclear,” says Brouwer of Utrecht University. “It shows that they are applying the legal basis for fingerprints to facial images. That is illegal.”
“It is also excessive,” says Brouwer. “The country would be on fire if it turns out that the police store the facial photos of all Dutch people.”
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Police: ‘We don’t act lightly’
The police must adhere to strict requirements before the facial photos of foreigners may be consulted, a spokesperson said in a response. For example, an examining magistrate must give permission at the request of a public prosecutor, someone who directs the police investigation on behalf of the Public Prosecution Service.
“And then only if there is a reasonable suspicion that the suspect is a foreigner,” the spokesperson continues, “or if the investigation has reached a dead end, or a quick result is required.” These are the conditions set out in the law that the police must adhere to if they want to use fingerprints from the aliens administration for the investigation and prosecution of criminal offences.
“We cannot and must not use it lightly,” said the spokesman.
The CATCH system with the two face databases can provide the police with ‘very relevant’ information about a person’s identity for the investigation, the police continues. “That could be in a bank fraud case involving an elderly couple or in preventing an attack on a person or strategic object.”
“The police do not need a database of everyone’s faces. Moreover, there is no legal basis for this.”
