First victory in court against AI-powered audio surveillance

Over three years after we launched this legal action, the Orléans Administrative Court has just confirmed that an AI-powered audio surveillance device – i.e., microphones installed in public spaces and linked to local CCTV, with the purpose of detecting so-called unusual situations – installed by the current city council of Orléans is illegal. This ruling is the first victory before a court in France against this kind of audio surveillance, and constitutes a strong reminder of the fundamental rights requirements for other cities that might be interested in such devices.

A slap in the face for Orléans and Sensivic

This is a cold reminder to the city of Orléans and the company Sensivic: deploying microphones in public spaces to monitor the population is not legal. Sensivic’s claims of a so-called “GDPR-compliant” product and Orléans’ fantasies in its defence that it was nothing more than a harmless “air vibration detector” were in vain.

In its ruling, the Administrative Court was severe. It began by rejecting the city’s argument that no personal data was being processed, pointing out that the microphone devices linked to CCTV “thus collect and use information relating to individuals who, by using the cameras with which they are linked, are likely to be identified by the operator”. It therefore naturally concluded that the device was illegal because it had not been authorised by law.

But the Administrative Court goes further. While the deputy mayor of Orléans, Florent Montillot, who is in charge of security, shamelessly claimed that this surveillance would “save lives”, the court set the record straight: “even if we assume that [the AI-powered audio surveillance system] is useful for the exercise of the police powers entrusted to the mayor […], it cannot be considered necessary for the exercise of these powers”. In other words: “usefulness” does not mean proportionality or legality when it comes to surveillance. This goes against all the political rhetoric of recent years, which consists of declaring legitimate anything requested by the police as long as it is useful or simpler on the ground. This has been the justification for various laws in recent years, such as the Global Security Law and the LOPMI.

A warning for the Technopolice

This ruling is a warning to the promoters of this increasingly unrestricted surveillance of public space. While AI-powered video surveillance (in French “vidéosurveillance algorithmique”, or VSA) remains the most commonly used technology – illegally, except, unfortunately, under the Olympics Law – AI-powered audio surveillance (in French “audiosurveillance algorithmique”, or ASA) is still being explored. Before Sensivic’s surveillance in Orléans, such a technology was used in Saint-Étienne thanks to an AI-powered audio surveillance system developed by Serenicity, which the CNIL had heavily criticised and stopped.

With this ruling, the Orléans Administrative Court not only declares AI-powered audio surveillance illegal: it also considers that a public contract signed between a city and a company to set up this type of surveillance can be challenged in court by an organisation like La Quadrature. This is far from being a procedural detail given that local authorities such as Marseille have in the past been able to evade legal scrutiny of their surveillance by playing on the very restrictive rules of litigation involving public contracts.

The question of linking AI-powered audio surveillance to traditional CCTV systems

In September 2023, the French Data Protection Authority, the CNIL, to which we had lodged a complaint at the same time as before Orléans Administrative Court, considered that this AI-powered audio surveillance was illegal when linked to video surveillance because of the possibility of “re-identifying” individuals. However, it added that this was no longer an issue now that the Orléans system had been disconnected from local CCTV. We rejected this analysis before the Orléans Administrative Court¹See our October 2023 and January 2024 briefs (in French)..

In its ruling, the Orléans Administrative Court did not explicitly consider that the AI-powered audio surveillance system of the city would not be processing data if it were no longer linked to video surveillance. Since the court was reviewing the legality of the contract between Sensivic and Orléans, which set out such a link, it limited itself to stating that the joint AI-powered audio surveillance and CCTV system was illegal.

In any case, this point is minor: algorithmic AI-powered audio surveillance requires, by its very nature, to be linked to an additional source of information to process alerts when thrown. Whether this is done by linking it to CCTV device or by ordering police or security officers to go to the location where the event has been detected, AI-powered audio surveillance will always aim to determine the source of the alert, and therefore to identify individuals. This technology is therefore illegal by its very nature.

France’s failure to take action against an obviously illegal technology

However, it is impossible not to mention the slowness of the public authorities (in this case, the CNIL) and the court when it comes to the obviously illegal surveillance systems used by the security industry. While a similar system was explicitly and very clearly sanctioned in Saint-Étienne in 2019, Sensivic was able to conclude without any difficulty a contract to set up its microphones fuelled by artificial intelligence. It took two complaints from La Quadrature to halt this project.

A case like this proves that the security industry has no concern for the law and the protection of civil liberties, that it is prepared to do anything to develop its market, and that the public authorities and the business world of start-ups are happy to go along with it. How did Sensivic, with such a clearly illegal technology, manage to raise €1.6 million in 2022, part of which came from the BPI (Banque Publique d’Investissement, or Public Investment Bank)? An explicit ban on these surveillance technologies is the only possible and sustainable way to go.

This ruling remains an unambiguous victory. We hope it will pave the way for other successes in our legal fight against the Technopolice, particularly in Marseille, where our case against the local AI-powered videosurveillance is still pending before the Administrative Court of Appeal. So to help us continue the fight, please consider making a donation, or get involved in your city.