Data protection, the LED, and the evolving landscape of AI governance

In May 2024, OUP attended the Computers, Privacy and Data Protection (CPDP) conference in Brussels where academics, practitioners, and policymakers from the fields of data protection and privacy, as well as politics and technology, gathered to discuss the latest in legal, regulatory, academic, and technological development in privacy and data protection. The theme of this year’s conference centred around the seemingly inescapable growth of AI and its increasing impact on all parts of our lives, cultures, and societies, and sought to ask the fundamental question: is AI governable?

We spoke to Franziska Boehm and Eleni Kosta, two leading scholars who co-edited The EU Law Enforcement Directive: A Commentary to get their thoughts on the evolving landscape of data protection and how this might inspire further research into the LED, what the European Parliament’s recent adoption of the AI Act might mean for the LED in the future, and the evolving landscape of data protection.

Please could you briefly introduce yourselves and the titles of your book?

EK: I’m Eleni Kosta, a Professor of Technology Law and Human Rights at the University of Tilburg.

FB: And I’m Franziska Boehm, a Law Professor in Germany at the Karlsruhe Institute of Technology and the Leibniz Institute of Infrastructure.

EK: And the two of us co-edited the commentary on the Law Enforcement Directive, which is Directive 2016/680 on the processing of personal data in the field of law enforcement, so it’s kind of the little brother of the GDPR.

What are you hoping readers will take from the book?

EK: Because this is not a traditional book (it is a commentary), we hope that it will function as a source of guidance to all sorts of legal scholars, practitioners, judges, students, lawyers…

FB: Even police officers…

EK: Exactly.

And how do you think it might inspire future research in the area of the LED? What do you think are the areas that are evolving or that might require further research in the future? Or further guidance?

EK: Case law.

FB: Yes, case law, but I also think automatic decisions and the connection between law enforcement and AI. The use of AI tools in law enforcement is a big topic I think, which we were discussing in the Europol panel. They said we should agree that AI should be used more in law enforcement—I don’t know whether we should agree exactly—but I think that automatic decisions in law enforcement is a special topic that requires more research.

And it’s obviously a fast-moving area, so there are challenges there…

EK: Yes, because it took a few years for the EU member states to actually transpose the LED into their national legal orders, so now we see that more and more court cases appear, and then several of them reach the Court of Justice, which gives some guidance, and then there will be a need for further work.

You touched on it there, but what are your thoughts around the theme of the conference – AI governance, and is AI governable? How does that impact research around the LED?

FB: As I mentioned, it will be an important topic, and we need more critical voices also to, let’s say, limit the use of AI in law enforcement a bit, because there are serious fundamental rights issues that come along with it, and I think that this is one part of this topic; the other side is the challenges that also arise via the use of AI, possibly also partly in law enforcement, and finding the right balance there.

EK: Also, the fact that we just got the approval of the AI Act by the Council yesterday [22^nd May] makes the conference super timely. We were anticipating it—we are both members of the scientific committee—so we were thinking about it. Are data protection and AI closely related? Of course they are not overlapping, but they are certainly closely related, so I think that it’s interesting that the conference is opening up to that.

FB: Also, the interlinks between the AI Act and the Law Enforcement Directive—that will need further work as well very soon.

_{Featured image: Maximalfocus via Unsplash, public domain.}