EU “Smart Borders”: Will They Really Be So Smart?
EU bodies are concerned about the effectiveness, the cost and risks to privacy that the proposed EU borders control systems may entail.
In February 2013, the European Commission proposed a Smart Borders package comprising three Regulations: the first, establishing the Registered Traveller Programme (RTP) to facilitate access to the EU of pre-registered non-EU travellers through automated border checks. It is estimated that 5 million legitimate non EU-travellers per year will make use of this new programme. The second Regulation creating an Entry/Exit System (EES) based on biometrics, aims at identifying “overstayers” -those who enter the EU lawfully, but who stay longer than permitted. The number of regular travellers crossing borders will increase dramatically (by 80% at the air borders alone, from 400 million in 2009 to 720 million in 2030), and the Commission argues that greater efficiency is needed. The third legislative item will amend accordingly the Schengen Borders Code.
The three-part package would be implemented in all EU countries by 2018 if the European Parliament approves it. But compliance with the system will cost approximately 1.1 billion Euros; a very high cost, which combined with the amount of data collected would require compelling justification according to a large number of NGOs. Furthermore, the foreseen costs of the EES and RTP have increased ten-fold since the proposals were first published in 2008. On the other hand, the American experience with its US VISIT programme has put into question the cost/efficiency relationship of these systems, investing more than $1.5 billion but resulting in only 1,300 entry refusals.
A European public body, the European Data Protection Supervisor, expressed several concerns in his opinion of the 18 July 2013, describing the “Smart Borders” proposal, and particularly the EES, as “costly, unproven and intrusive”. The European Supervisor questioned a large number of issues in the proposed legislation: the necessity for the collection and storage of excessive amounts of personal information, particularly when two or four fingerprints are sufficient for verification (the EES stores 10 fingerprints); and also, the proportionality of the interference in the right to privacy of individuals. The clear case law on the matter by the European Court of Human Rights cannot be ignored, particularly its S. and Marper case (4 December 2008), where the Court ruled that fingerprints and photographs contain unique information that is “capable of affecting the private life of an individual” and that retention of this information without the consent of the individual concerned “cannot be regarded as neutral or insignificant”.
Moreover, the European Supervisor emphasises that the general trend towards giving law enforcement authorities access to the data of individuals, who in principle are not suspected of committing any crime, is a dangerous one. The legal consequences of automating border procedures and its potential mistakes, the necessary procedures for protecting fundamental rights since the multiplication of databases in border management (such as VIS, SIS, CIS, EURODAC) are other points which concern the Data Protection Authority.
However this is not the end of the story. The European Economic and Social Committee (EESC) also criticised several points in the Commission proposals (Opinion of 22 May 2013), such as the risk of differentiation of travellers that might result in practice in quasi discrimination because the access to the RTP will depend on status, income, language skills and education. Furthermore, the EESC warns against a potential use of race, ethnicity or other sensitive grounds as a basis for statistical dataveillance, which would be difficult to reconcile with non-discrimination principles. No less important, it is not clear to the EESC on what grounds the criteria for rejecting an RTP application is assessed, thereby opening the way for arbitrary decisions.
Understanding the difficulties in having a balanced approach in such an important and sensitive issue, we must not forget the reminder that Pope John Paul II issued in Ecclesia in Europa: “Saying ‘Europe’ must be equivalent to saying “openness” [It] needs to be an open and welcoming Continent, continuing to develop in the current process of globalization forms of cooperation which are not merely economic but social and cultural as well.”
José Luis Bazán