Leave Us Alone, But Also Let Us Be Opaque: The Right to Opacity as a Conceptual Response to Law Enforcement’s Emotional Surveillance Under EU Law

In this paper for the European Law Blog, author Georgios Bouchagiar (Vrije Universiteit Brussel/European Law Blog) explores the risks posed by AI-enabled emotional surveillance, particularly when law enforcement uses AI to infer humanly invisible or pre-conscious emotional states. He argues that such technology could extend surveillance beyond observable behavior into the realm of unconscious thoughts and emotions, creating significant risks to privacy, autonomy, and human dignity.

Bouchagiar examines the EU AI Act’s approach to emotion recognition, arguing that it falls short of the protections originally envisioned by the European Parliament. Although the Parliament had proposed an unconditional ban on emotion inference for law enforcement because of concerns about scientific reliability, cultural and individual variability, and bias, the final AI Act instead classifies these systems as high-risk and subjects them to limited obligations, with exceptions that can benefit police investigations.

The paper then considers whether existing data protection and criminal procedure laws could provide stronger safeguards. Bouchagiar argues that AI-inferred emotions can qualify as personal and highly sensitive data because they may be intimate, revealing, exploitable, and continuously collected. However, he maintains that simply classifying inferred emotions as sensitive data is insufficient because processing could still be justified through exceptions such as public interest. He therefore advocates categorical and unconditional bans on law enforcement’s use of AI emotional surveillance and on admitting such evidence in criminal proceedings.

Finally, Bouchagiar proposes recognizing a distinct human right to “opacity,” protecting individuals from state access to their humanly invisible, pre-conscious, and unconscious emotional states. Drawing on privacy and human dignity principles, he argues that there should be an inviolable sphere of inner life that governments cannot penetrate, regardless of technological capabilities or competing public interests. Such a right, he concludes, would ensure that AI’s ability to make previously inaccessible aspects of human consciousness legible does not undermine the fundamental boundary between the individual’s inner life and the state…

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