Privacy in Paris: Will the 2024 Olympics be the Gold Standard?
By Julianna Hale* Posted: 10/2/2023
In 1956, boycotts were held at the Melbourne Olympics.[1] In 1972, the Munich Massacre occurred at the Olympic Village.[2] In 1996, a pipe bomb exploded in Atlanta’s Centennial Olympic Park.[3] With the rise of technology and the recent surge of public use of artificial intelligence (“AI”), greater safety measures are taking place to help prevent future similar events from occurring.[4] In light of this, French senators passed a bill to increase use of surveillance cameras imbedded with AI to detect suspicious behaviors during the 2024 Paris Olympic Games.[5]
France’s Surveillance Bill
French senators approved legislation for AI-powered video surveillance in January 2023.[6] In March 2023, the bill passed by a wide majority, even after many criticisms of the bill and pleas for its rejection.[7] The bill will allow experimental video surveillance to track the movement and events at the Olympics in real time.[8] Through a recently developed algorithm, cameras can spot suspicious activity, such as stampedes or unsupervised luggage.[9] The law makes clear that the cameras will not process biometric data or use facial recognition techniques.[10] This type of technology is not only new to France, but also to the whole European Union.[11]
However, because of the experimental nature of the cameras, many continue to oppose the bill.[12] In an open letter to the National Assembly of French Parliament, a human rights watch group stated that enacting the bill would set a precedent of unwarranted surveillance in public spaces.[13] The group further argues the surveillance being proposed poses “unacceptable risks to fundamental rights, such as the right to privacy, the freedom of assembly and association, and the right to non-discrimination.”[14]
Because laws of other nations do not apply in France, any Americans who are impacted by France’s bill are subject to French law.[15] But will this new bill set a precedent for other countries, including the United States?[16] An assessment of American privacy law and constitutional law suggests the ramifications to citizens’ rights must be assessed closely if the cameras were to come to the United States.[17]
American Privacy Laws
The United States does not have a singular governing law regulating “privacy.”[18] That is not to say that Americans do not value privacy—in fact, it is quite the opposite.[19] Various states have enacted their own laws which govern the use of personal information.[20] Further, there are federal regulations that govern privacy in specific scenarios.[21] While not explicitly written, the United States Constitution has implicitly granted the right to privacy, and several Supreme Court cases have concluded a right to privacy exists.[22]
Several actionable privacy torts may be brought against somebody if the elements of those torts are met.[23] For example, the tort of “Publicity Given to Private Life” or “Intrusion Upon Seclusion” are examples of ways in which an individual’s privacy may be violated.[24] People do not have the right to privacy if they are in a public space where privacy is not expected.[25] Therefore, the surveillance cameras in France would likely not breach anybody’s privacy if they were in public.[26] However, concerns arise if privacy intermingles with other legal concerns.[27]
American Constitutional Laws
There are several concerns that the surveillance cameras will cause major breaches to fundamental freedoms.[28] The right to privacy is closely related to the First Amendment right to freedom of association.[29] There are two general types of association: private and expressive.[30] Private association means humans can have intimate relationships unaffected by government control.[31] On the other hand, expressive association says Americans have the right to associate for the purposes given in the Constitution.[32] This means that during the Olympics, groups that gather for protesting or other purposes may be detected by the surveillance cameras as suspicious activity, but this also conflicts with freedom of association.[33] If these cameras were to be implemented in the United States, strong regulations would be needed to ensure compliance with First Amendment rights.[34]
Critics of France’s bill also had strong concerns about how the surveillance cameras could lead to discrimination.[35] While America was not one of the countries who critiqued the bill, discrimination in America is still a concern, regardless of if the cameras are present or not.[36] It has been implied that racial discrimination goes against the Constitution through the Fourth and Fourteenth Amendments.[37] Still, racial profiling has become a systemic problem in American policing.[38] If France’s cameras came to America and were used to detect suspicious behavior, the likelihood of racial profiling would likely significantly increase.[39]
Additionally, facial recognition is the least accurate form of biometric data, meaning any racial profiling that occurs would likely be inaccurate and biased.[40]
Conclusion
The risk to safety at the Olympics is not an unknown phenomenon.[41] France’s bill aims to minimize these risks through their AI-embedded surveillance cameras.[42] Taking the criticisms of the bill seriously will hopefully ensure regulations surrounding AI and surveillance are implemented and enforced if the cameras make their way into America.[43] With the Olympics making its way to the United States in 2028, it is imperative we assess the outcome of the French bill after the 2024 Olympics and remember the privacy and constitutional ramifications AI surveillance can have.[44]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2024, Villanova University Charles Widger School of Law.
[1] See Three Countries Boycott the Games in Melbourne, CBC Sports (May 22, 2008, 2:08 PM), https://www.cbc.ca/sports/2.720/three-countries-boycott-the-games-in-melbourne-1.774179 (noting various historical events that brought political woes and questioned safety of Games ). In the months leading up to the Melbourne Olympics, Egypt took control of the Suez Canal. See id. (taking Suez Canal from Britain and France, and then Britain and France invaded Egypt to regain control). Further, less than a month before the Olympic opening, the Soviet Union invaded Hungary. See id. (causing Netherlands, Spain, and Switzerland to boycott Games in protest of invasion). Lastly, China boycotted the Games because Taiwan was participating, and Egypt, Iraq, and Lebanon boycotted because of worsening political conditions in the Middle East. See id. (finding these instances are not only time Olympics has been in middle of political conflict).
[2] See 1906 – 2022 Politics and Protest at the Olympics, Council on Foreign Rel., https://www.cfr.org/timeline/olympics-boycott-protest-politics-history (last visited Sept. 15, 2023) (beginning with members of Black September movement attacking Israeli coaches and athletes); see also Munich Massacre, Britannica (Aug. 29, 2023), https://www.britannica.com/event/Munich-Massacre (providing Germany was coming back from last time they held Olympics during Hitler’s reign). During the 1936 Berlin Games, Hitler used his platform to push his Nazi propaganda and (causing Western Germany to be excited about new contrast in politics at Munich games). Over a week after the Games had started, Palestinian militants snuck their way into the Olympic Village. See id. (disguising themselves as athletes to perform terrorist attack against Israeli team). During the attack, they were able to kill an Israeli athlete and coach and took nine hostages. See id. (noting security at Village was lax and guards were inconspicuous, unarmed, and nonconfrontational).
[3] See Eric Rudolph, FBI, https://www.fbi.gov/history/famous-cases/eric-rudolph (last visited Sept. 23, 2023) (planting bomb that killed one and harmed more than one hundred people). Eric Rudolph planted four bombs over a two-year timespan and police had trouble identifying him. See id. (capturing him seven years after Atlanta Olympics). Mr. Rudolph called 911 twice prior to the bomb going off at the Olympics. See id. (pleading guilty to several felony charges and receiving multiple life sentences).
[4] See Kalyn Sims, How Assistive AI Can Be a Force Multiplier in Public Safety, Forbes (June 6, 2023, 8:00 AM), https://www.forbes.com/sites/forbestechcouncil/2023/06/06/can-assistive-ai-can-be-a-force-multiplier-in-public-safety/?sh=3a495e9a4f9 (noting lack of departmental resources as safety concern that AI can help fix); see also Ashley Stahl, The Rise of Artificial Intelligence: Will Robots Actually Replace People?, Forbes (May 3, 2022, 8:15am), https://www.forbes.com/sites/ashleystahl/2022/05/03/the-rise-of-artificial-intelligence-will-robots-actually-replace-people/?sh=448d83413299 (explaining robots and AI are likely to be in daily lives by 2025). A research study found that police hiring dropped 5%, resignation increased by 18%, and retiring increased by 45% over a two-year period. See id. (concluding AI technology could be advantageous in overworked areas or across jurisdictions).
[5] See France: Intrusive Olympics Surveillance Technologies Could Usher in a Dystopian Future, Amnesty Int’l (Mar. 20, 2023), https://www.amnesty.org/en/latest/news/2023/03/france-intrusive-olympics-surveillance-technologies-could-usher-in-a-dystopian-future/ (explaining bill draft was approved by Senators in January); see also Peter O’Brien, France Passes Controversial AI Surveillance Bill Ahead of 2024 Olympics, France24 (Mar. 24, 2023, 4:21 PM), https://www.france24.com/en/tv-shows/tech-24/20230324-france-passes-controversial-ai-surveillance-bill-ahead-of-2024-olympics (discussing bill that allows police to use AI as a means of identify potential threats).
[6] See Ayang Macdonald, French MPs Prefer Specific Law on Facial Recognition For 2024 Olympics, Biometric Update (Jan. 23, 2023, 11:25 am), https://www.biometricupdate.com/202301/french-mps-prefer-specific-law-on-facial-recognition-for-2024-olympics (indicating lawmakers were set to vote to endorse surveillance bill during Paris Olympics). Senators were not able to fully debate the matter as planned because there were concerns that the facial recognition aspect of the law could not passively be introduced at the Olympics. See id. (reformulating and readdressing applicable portion of law at later date).
[7] See France: Reject Surveillance in Olympic Games Law, Hum. Rts. Watch (Mar. 7, 2023, 6:05AM), https://www.hrw.org/news/2023/03/07/france-reject-surveillance-olympic-games-law (stating thirty-eight civil society organizations had opposed bill). Authors of the letter were highly concerned about the implementation of the surveillance technology. See id. (stating it would cause serious breaches to freedoms under guide of safety and surveillance).
[8] See 2024 Olympic and Paralympic Games, Senate, https://www.senat.fr/leg/pjl22-220.html (last visited Sept. 15, 2023) (claiming purpose of camera operations was to detect predetermined events likely to present risks). The surveillance experiment is set to end June 30, 2025. See id. (noting that, at most, six months after experiment ends, evaluation report on its implementation will be produced and members of public will be informed of specific methods of experiment).
[9] See Laura Kayali, Top French Court Backs AI-Powered Surveillance Cameras for Paris Olympics, Politico (May 17, 2023, 7:47 PM), https://www.politico.eu/article/french-top-court-backs-olympics-ai-powered-surveillance-cameras/ (explaining cameras are trained to spot suspicious behavior, such as unsupervised luggage and excessive crowd movements).
[10] See 2024 Olympic and Paralympic Games, supra note 8 (noting cameras cannot reconcile, connect, or link with other personal data processing systems).
[11] See France: Intrusive Olympics Surveillance Technologies Could Usher in A Dystopian Future, supra note 5 (describing how mass video surveillance will be used for first time in history of France and Europe); see also France: Allowing Mass Surveillance at Olympics Undermines EU Efforts to Regulate AI, Amnesty Int’l (Mar. 23, 2023), https://www.amnesty.org/en/latest/news/2023/03/france-allowing-mass-surveillance-at-olympics-undermines-eu-efforts-to-regulate-ai/ (stating France is setting precedent for other nations). The cameras are the first of its kind and seem to go against the work the EU has done regarding AI. See id. (undermining Europe’s ongoing efforts to regulate AI technology and protect fundamental rights).
[12] For further discussion of the criticisms of the French bill, see supra note 7 and accompanying text.
[13] See France: Reject Surveillance in Olympic Games Law, supra note 7 (claiming this would be detrimental to fundamental rights and freedoms). For further discussion of fundamental rights, see infra note 28 and accompanying text.
[14] See id. (arguing French surveillance law is not necessary and not proportional to human rights laws it would violate).
[15] See United States v. Hoskins, 902 F.3d 69, 85 (2nd Cir. 2018) (stating courts will “not apply a U.S. law extraterritorially unless ‘the affirmative intention of the Congress [is] clearly expressed’”) (citation omitted).
[16] See In re PT Bakrie Telecom Tbk, 628 B.R. 859, 864 (Bankr. S.D. N.Y. 2021) (using foreign law in United States bankruptcy case). In this case, a foreign man wanted to apply his country’s laws in the United States. See id. (indicating man from Indonesia wanted Indonesian court-approved debt restructuring plan enforced in American court). The court said that when federal courts are assessing if they should use foreign law, they should look to if that foreign law abides by procedural fairness, violates United States law, and whether the foreign law was affected by fraud. See id. (holding foreign proceeding was recognized in United States).
[17] For further discussion of the ramifications to American rights, see infra notes 18–40 and accompanying text.
[18] See David Harrington, U.S. Privacy Laws: The Complete Guide, Varonis, https://www.varonis.com/blog/us-privacy-laws (last updated Mar. 10, 2023) (describing United States as “a patchwork and ever-changing web of laws governing data privacy.”). Due to the disjointed nature of American privacy laws, clarity as to which laws govern in different situations and what protections are provided is weak. See id. (stating organizations are still meant to know which regulations apply to them and to stay up to date on regulations).
[19] See Mary Madden & Lee Rainie, Americans’ Attitudes About Privacy, Security and Surveillance, Pew Rsch. Ctr. (May 20, 2015) https://www.pewresearch.org/internet/2015/05/20/americans-attitudes-about-privacy-security-and-surveillance/ (analyzing that 90% of adult Americans say controlling what information is collected about them is important). Americans have become more aware and concerned about data privacy and possible breaches. See id. (following 2013 events involving Edward Snowden) Many say these events have led to doubts about the integrity of their information in digital formats and want something done to limit these events. See id. (contributing to how Americans perceive their daily decisions and activities as they relate to data insecurity).
[20] See Andrew Folks, US State Privacy Legislation Tracker, Int’l Ass’n of Priv. Pro., https://iapp.org/resources/article/us-state-privacy-legislation-tracker/ (last updated Aug. 4, 2023) (listing California, Colorado, Connecticut, Delaware Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Virginia as states with enacted comprehensive privacy laws). For example, California has enacted the California Consumer Privacy Act (enhancing privacy rights and consumer protections for California residents); see also California Consumer Privacy Act (CCPA), Off. of Att’y Gen., https://oag.ca.gov/privacy/ccpa (last updated May 10, 2023) (giving more control to consumers over their personal information and what businesses can collect about them).
[21] See Harrington, supra note 18 (listing HIPAA, GLBA, and COPPA as examples of federal laws that protect privacy in healthcare sector, financial sector, and for minors twelve and under, respectively).
[22] See Judith Haydel, Privacy, Free Speech Ctr., https://firstamendment.mtsu.edu/article/privacy/#:~:text=In%20general%2C%20the%20strongest%20First,are%20unlawful%20are%20not%20protected (last updated Aug. 3, 2023) (noting Justice Brandeis argued First Amendment protected privacy in home and noting Justice Douglas said privacy was created “in a ‘penumbra’ cast by the First, Third, Fourth, Fifth, and Ninth Amendments.”).
[23] See David Canton, Invasion of Privacy: 4 Types of Privacy Torts, Harrison Pensa (Aug. 17, 2021), https://www.harrisonpensa.com/privacy-torts-4-types-of-invasion-of-privacy/ (referring to William Prosser’s article titled “Privacy”, which was written in 1960). Privacy typically comes in two forms (naming tort actions for damages due to invasion of privacy and constitutional rights violations due to government invasion); see also The Legal Right to Privacy, Stimmel Law, https://www.stimmel-law.com/en/articles/legal-right-privacy#:~:text=the%20general%20law%20of%20privacy,privacy%20against%20unlawful%20governmental%20invasion (last visited Sept. 24, 2023) (allowing aggrieved party to bring lawsuits against invader).
[24] See Restatement (Second) of Torts §§ 652A-E (Am. L. Inst. 1977) (listing various privacy torts and their elements that one can sue for).
[25] See United States v. Whaley, 779 F.2d 585, 591 (11th Cir. 1986) (defining reasonable expectation of privacy as depending “on the degree to which the locale is viewable by a member of the public without visual aids.”); see also United States v. Jones, 565 U.S. 400, 403 (2012) (holding man had no reasonable expectation of privacy after police placed tracking device on underside of car and drove on public roads).
[26] See 2024 Olympic and Paralympic Games, supra note 8 (explaining cameras will be installed in public areas, such as aircrafts, places hosting events, main roads, and public transportation).
[27] For further discussion of how privacy intermingles with other areas of the law, see infra notes 28–40 and accompanying text.
[28] See France: Intrusive Olympics Surveillance Technologies Could Usher in A Dystopian Future, supra note 5 (hypothesizing surveillance will undermine civic freedoms); see also France: Reject Surveillance in Olympic Games Law, supra note 7 (positing surveillance would cause unacceptable threat to freedoms). Critics of the bill feel strongly that the surveillance cameras will impact freedom of assembly and association. See id. (calling surveillance technology “draconian” and violations of privacy and constitutional rights). Europe’s Data Protection Board and Data Protection Supervisor have said biometric surveillance will suppress these freedoms. See id. (suppressing freedom of assembly and association due to fear of being identified, profiled, or persecuted).
[29] See Haydel, supra note 22 (arguing strongest First Amendment protection for privacy is freedom of association). Haydel goes on to recognize, however, that First Amendment rights, including Freedom of Association, are not protected when illegal conduct occurs. See id. (citing to cases where courts found associations that incited violence or crime were not protected).
[30] See Fleisher v. Signal Hill, 829 F.2d 1491, 1499–1500 (9th Cir. 1987) (using Supreme Court precedent to show freedom of association takes two forms); see also The Freedom (Not) to Associate, Univ. Mo.–Kan. City Sch. Law, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/association.htm#:~:text=Nonetheless%2C%20the%20Court%20has%20recognized,Amendment's%20protection%20of%20free%20speech (last visited Sept. 24, 2023) (differentiating private association as relating to freedom of privacy and expressive association as relating to freedom of association).
[31] See Fleisher, 829 F.2d at 1500 (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)) (describing private association as “a fundamental element of personal liberty”). The court held these private relationships safeguard individual freedoms. See id. (stating that entering into and maintaining private relationships must not be intruded by State).
[32] See id. (describing expressive association as allowing for activities such as public speech, assembly, and exercise of religion).
[33] See France: Reject Surveillance in Olympic Games Law, supra note 7 (observing people may feel their reasonable expectation of privacy and ability to exercise their freedom is stifled due to biometric surveillance).
[34] See Policy Recommendations: Internet Freedom, Freedom House, https://freedomhouse.org/policy-recommendations/internet-freedom (last visited Sept. 24, 2023) (proposing government surveillance programs should adhere to International Principles on Application of Human Rights to Communications Surveillance which is followed by “civil society groups, industry leaders, and scholars for protecting users’ rights.”).
[35] See Civil Society Open Letter on the Proposed French Law on the 2024 Olympic and Paralympic Games, Eur. Ctr. for Not-For-Profit L. (Mar. 1, 2023), https://ecnl.org/news/civil-society-open-letter-proposed-french-law-2024-olympic-and-paralympic-games (listing thirty-eight civil society organizations throughout Europe that denounce French surveillance bill). In an open letter to French policymakers, several civil rights groups issued their concerns and discussed their critiques of the bill. See id. (listing cameras would violate principles such as necessity and proportionality and fundamental human rights). Regarding discrimination, the writers said public surveillance could increase the stigma around various groups who are typically discriminated against. See id. (giving homeless people loitering on public streets as example).
[36] See Andrew Daniller, Majorities of Americans See at Least Some Discrimination Against Black, Hispanic and Asian People in The U.S., Pew Rsch. Ctr. (Mar. 18, 2021), https://www.pewresearch.org/short-reads/2021/03/18/majorities-of-americans-see-at-least-some-discrimination-against-black-hispanic-and-asian-people-in-the-u-s/ (providing discrimination statistics in United States). Statistics show people believe only about 40% of white people are discriminated against, whereas 80% of people believe there is a lot or some discrimination against Black people, 76% say this about Hispanic people, and 70% say this about Asian people. See id. (stating over half of Americans believe discrimination is still present in general).
[37] See April J. Anderson, Racial Profiling: Constitutional and Statutory Considerations for Congress, Cong. Rsch. Serv. (July 4, 2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10524 (justifying searches and seizures through Fourth Amendment and providing equal protection to all through Fourteenth Amendment). The Fourth Amendment does not explicitly prohibit racial discrimination. See id. (qualifying that search and seizure with no factual or evidential basis will not be accepted). The Fourteenth Amendment says that any government function, including policing, must provide equal protection to all. See id. (considering Fourth Amendment as most relevant to racial profiling).
[38] See Ed Pilkington, US Must Tackle Police Brutality Against Black People Head-On, UN Experts Say, Guardian (May 5, 2023, 6:28 PM), https://www.theguardian.com/us-news/2023/may/05/us-police-brutality-un-experts-george-floyd (announcing United States must change tactics to tackle ongoing suffering of police brutality and law enforcement discrimination against Black people).
[39] See Vinita Srivastava, Being Watched: How Surveillance Amplifies Racist Policing and Threatens the Right to Protest – Don’t Call Me Resilient EP 10, Conversation (Oct. 27, 2021, 9:14 AM),
https://theconversation.com/being-watched-how-surveillance-amplifies-racist-policing-and-threatens-the-right-to-protest-dont-call-me-resilient-ep-10-167522 (warning surveillance and data collection is danger to Black, Indigenous, and other racialized populations); see also Ban Dangerous Facial Recognition Technology That Amplifies Racist Policing, Amnesty Int’l (Jan. 26, 2021), https://www.amnesty.org/en/latest/press-release/2021/01/ban-dangerous-facial-recognition-technology-that-amplifies-racist-policing/#:%7E:text=%E2%80%9CFacial%20recognition%20risks%20being%20weaponized,Rights%20Researcher%20at%20Amnesty%20International (stating surveillance will disproportionately impact people of color and exacerbate systemic racism). The article says that police and government agencies should be completely banned from using, developing, producing, and selling facial recognition technology. See id. (calling for ban on all surveillance technology systems).
[40] See Evan Schuman, Biometrics Are Even Less Accurate Than We Thought, Computerworld (Dec. 5, 2022, 9:43 AM), https://www.computerworld.com/article/3682149/biometrics-are-even-less-accurate-than-we-thought.html (concluding biometrics are convenient but inefficient for security defense).
[41] For further discussion of historical events raising concerns of safety at the Olympics, see supra notes 1–3 and accompanying text.
[42] See 2024 Olympic and Paralympic Games, supra note 8 (ensuring security for various events). The aim of the surveillance cameras is to, on a large scale, secure events from acts of terrorism or other serious threats to personal safety. See id. (naming sporting, recreational, or cultural events as examples of large scale events where safety should be secured).
[43] See Christopher J. Casillas, Peter K. Enns, & Patrick C. Wohlfarth, How Public Opinion Constrains the U.S. Supreme Court, 55 Am. J. of Pol. Sci. 74, 86 (2011) (finding public mood directly correlates with Supreme Court decisions and policy outcomes).
[44] For further discussion of the privacy and constitutional issues, see supra notes 18–40 and accompanying text.
