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Automating Freedom, Security and Justice: Interoperability of AFSJ Databases as a Move Towards the Indiscriminate Mass Surveillance of Third-Country Nationals

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Abstract

Following a terrorist attack in Paris and the peak of the migrant crisis in Europe, in December 2015 the European Council highlighted the urgent need to enhance information sharing between actors in the area of freedom, security and justice. In the subsequent years the EU introduced a number of legislative proposals with the aim of ensuring more efficient border and migration management and enhancing the internal security of the Union. In addition to the existing information systems in the area of freedom, security and justice, it established two additional databases (the Entry/Exit System and the European Travel Information and Authorisation System) and is planning to make them fully interoperable in the near future. Even more disturbingly, as a measure in the fight against terrorism and organised crime, the EU has gradually allowed law enforcement authorities to access information systems originally created for border control purposes and to use the data contained therein to prevent, detect and investigate crimes. Although numerous NGOs and even some EU institutions, including the European Data Protection Supervisor (EDPS) and the EU Agency for Fundamental Rights, have expressed grave concerns as regards the human rights implications of the measures taken by the EU, the Commission insists on protecting EU citizens at the expense of the rights of third-country nationals. This chapter is aimed at exploring whether the EU’s data gathering practices are following the path taken by the USA in the fight against terrorism following the 9/11 attacks by conducting mass surveillance of foreign nationals, which is incompatible with its own data protection framework.

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Notes

  1. 1.

    See, e.g. the speech given by the President of the USA, Barack Obama, on 17.1.2014, available at: https://www.youtube.com/watch?v=p4MKm2uFqVQ (Accessed 30.1.2020); remarks by Gen. Keith Alexander, the Director of the NSA and Commander of the US Cyber Command, at the Aspen Security Forum on 18.7.2013, available at: https://www.nsa.gov/news-features/speeches-testimonies/Article/1619508/transcript-of-remarks-by-gen-keith-alexander-commander-us-cyber-command-uscyber/ Accessed 30.1.2020).

  2. 2.

    The European Agenda on Security is inconsistent when addressing the topic of AFSJ databases—it does not explicitly refer to the need for the creation of any additional information systems; however, it does mention the revised proposal of the Smart Borders Package to be introduced in 2016, a part of which is also the establishment of the Entry/Exit System. With this information in mind, the transformation towards “effective and genuine Security Union” becomes even more obvious.

  3. 3.

    The proposals of the German Minister of Internal Affairs to the Council of the European Union following the 9/11 terrorist attacks suggested the use of Eurodac for law enforcement purposes, the establishment of a central register of TCNs present in the territory of the EU and the “interconnection of data by making on-line access authorisation to the databases of the SIS available to Europol, national public prosecutor’s offices, immigration and asylum authorities” (13176/01, 2001).

  4. 4.

    The Communication defines interoperability as the “ability of IT systems and of the business processes they support to exchange data and to enable the sharing of information and knowledge. Interoperability is a technical rather than a legal or political concept. This is disconnected from the question of whether the data exchange is legally or politically possible or required” (COM/2005/0597 final, 2005).

  5. 5.

    In order to implement the main highlights of the European Agenda on Security, the following Action Plans were adopted: (1) the EU Action Plan against illicit trafficking in and use of firearms and explosives was adopted in December 2015; (2) the Action Plan for strengthening the fight against terrorist financing was adopted in February 2016; and finally, (3) the Communication on Stronger and Smarter Information Systems for Borders and Security was adopted in April 2016.

  6. 6.

    Similarly, a European Agenda on Migration, which was adopted the same year as the European Agenda on Security, completely ignores the interoperability measures and instead concentrates on the Smart Borders Package as the key facilitator of more efficient border management and the fight against illegal migration (COM(2015) 240 final, 2015b).

  7. 7.

    Commission Decision of 17 June 2016, Article 3.

  8. 8.

    This is particularly obvious in the Impact Assessment accompanying the interoperability proposals, which only briefly touches upon the question of potential human rights infringements, which are dealt with on one page altogether. Although the potential non-compliance with the data protection regime is more thoroughly assessed by looking at the necessity and proportionality of the proposed measures, the question remains what the value of the analysis is if the problem and pursued objective are not clearly defined, which is the main shortcoming of the Commission’s Impact Assessment (Eisele, 2020).

  9. 9.

    The analysis does not seek to be exhaustive, but rather presents a general overview with the aim of understanding the role of information systems as future parts of interoperability.

  10. 10.

    For a detailed analysis of the changes introduced by the second-generation Schengen Information System, see Brouwer, E. (2008). Digital Borders and Real Rights: Effective Remedies for Third-Country Nationals in the Schengen Information System. Leiden, Boston: Martinus Nijhof Publishers, 71–107; Boehm, F. (2012). Information Sharing and Data Protection in the Area of Freedom, Security and Justice: Towards Harmonised Data Protection Principles for Information Exchange at EU-level. Heidelberg, Dordrecht, London, New York: Springer, 261–280.

  11. 11.

    Regulation 2018/1861, Article 1; Regulation 2018/1862, Article 1.

  12. 12.

    Currently, 30 countries use the SIS II: 25 EU Member States, 3 of which are not a part of the Schengen area but nevertheless (partially) use the SIS (Bulgaria, Romania and Croatia) and 4 Schengen associated countries (Switzerland, Norway, Liechtenstein and Iceland) and the UK. The operation of the SIS II by the UK after it left the EU is yet to be determined.

  13. 13.

    The SIS II contains various categories of alerts relating to persons, e.g. missing persons, persons wanted for arrest, persons being sought to assist in a criminal procedure (witnesses or victims) and persons that are not entitled to enter or stay in the Schengen area.

  14. 14.

    For a thorough analysis of the VIS, see: Peers, S. (2009). Legislative Update: EC Immigration and Asylum Law, 2008: Visa Information System. European Journal of Migration and Law, 11(1) 69–94; Boehm, F. (2012). Information Sharing and Data Protection in the Area of Freedom, Security and Justice: Towards Harmonised Data Protection Principles for Information Exchange at EU-level. Heidelberg, Dordrecht, London, New York: Springer, 280–292; Heyes, B. (2004). Statewatch analysis From the Schengen Information System to SIS II and the Visa Information (VIS): the proposals explained. Statewatch Report. Available at: https://www.sosf.ch/cms/upload/pdf/sis2.pdf (Accessed 2.5.2020).

  15. 15.

    The VIS contains two categories of personal data on EU citizens (name and surname), which are only added to the database in the event an EU citizen issues an invitation and/or is liable to pay a visa applicant’s subsistence costs during his or her stay (VIS Regulation, Article 9(4)(f)).

  16. 16.

    VIS Regulation, Article 2(g).

  17. 17.

    In fact, the whole process of establishing a common visa policy on the EU level was significantly affected by the terrorist activity at the beginning of the new millennium, which decisively tied together previously separated policy fields of migration and internal security. See, for example, Council Document 14523/01 (26.1.2002), which states: “(t)he events of 11 September 2001 … radically altered the situation, showing that visas are not just about controlling immigration but are above all an issue of EU member states’ internal security”.

  18. 18.

    For a critical appraisal of Eurodac, see: Brouwer, E. (2002). Eurodac: Its Limitations and Temptations. European Journal of Migration and Law, 4(2) 231–247; Aus, J. P. (2006). Eurodac: A Solution Looking for a Problem?. European Integration Online Papers, 10(6) 1–26; Vavoula N. (2015). The Recast Eurodac Regulation: Are Asylum Seekers Treated as Suspected Criminals? in: Bauloz C., Ineli-Ciger M., Singer S., Stoyanova V. (eds.). Seeking Asylum in the European Union. Selected Protection Issues Raised by the Second Phase of the Common European Asylum System. Brill Nijhoff.

  19. 19.

    Eurodac Regulation, Articles 5–7.

  20. 20.

    Eurodac Regulation, Article 11.

  21. 21.

    For an overview of the human rights implications of ETIAS, see: Alegre, S., Jeandesboz, J., Vavoula, N. (2017). European Travel Information and Authorisation System (ETIAS): Border management, fundamental rights and data protection. Study for the LIBE Committee.

  22. 22.

    Retention periods are stipulated in Article 54 of the ETIAS Regulation.

  23. 23.

    EES is part of the “Smart Borders Package”. See, for example: Napieralski, A. (2019). Collecting Data at EU Smart Borders: Data Protection Challenges of the New Entry/Exit System. juridikum 2019(2), 199–209; Dimitrova, D. (2016). The ‘Smartification’ of EU Borders: When ‘Smart’ Technology Does Not Come with ‘Smart’ Safeguards. CiTiP Working Paper 28/2016; Wojnowska-Radzińska, J. (2020). Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) versus data protection—Is it done in the right way?. Review of European and Comparative Law, 37(2), 121–138.

  24. 24.

    EES Regulation, Article 6(1).

  25. 25.

    EES Regulation, Articles 14–20.

  26. 26.

    Ibid., Chapter 4.

  27. 27.

    ECRIS-TCN Regulation, Article 7.

  28. 28.

    Ibid., Articles 14–16.

  29. 29.

    Regulation (EU) 2018/1860; Regulation (EU) 2018/1861, Regulation (EU) 2018/1862.

  30. 30.

    Proposal for a Regulation of the European Parliament and of the Council establishing the conditions for accessing the other EU information systems and amending Regulation (EU) 2018/1862 and Regulation (EU) yyyy/xxx [ECRIS-TCN], 7. 1. 2019, COM(2019) 3 final; Proposal for a Regulation of the European Parliament and of the Council establishing the conditions for accessing other EU information systems for ETIAS purposes and amending Regulation (EU) 2018/1240, Regulation (EC) No 767/2008, Regulation (EU) 2017/2226 and Regulation (EU) 2018/1861, 7.1.2019, COM(2019) 4 final.

  31. 31.

    The limits to searching biometric data with the BMS are introduced in Article 14 of both interoperability Regulations: “Queries with biometric data shall take place in accordance with the purposes provided for in this Regulation and in Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1860, (EU) 2018/1861, (EU) 2018/1862 and (EU) 2019/816”.

  32. 32.

    The architecture of the SIS II is too complex to allow merging with other information systems and will therefore not be included in the CIR.

  33. 33.

    The Interoperability Impact Assessment estimates that by 2021 the data of roughly 218 million TCNs will be collected by at least one of the AFSJ information systems, with the largest portion (200 million) contained in the EES (SWD(2017) 473 final, 2017).

  34. 34.

    For more about the privacy implications of generalised, pre-emptive surveillance, see: Mitsilegas V. (2015) The Transformation of Privacy in an Era of Pre-emptive Surveillance. Tilburg Law Review, 20(1) 35–57; Mitsilegas V. (2014) The Value of Privacy in an Era of Security: Embedding Constitutional Limits on Preemptive Surveillance. International Political Sociology, 8(1) 104–108.

  35. 35.

    Data Retention Directive, Article 1.

  36. 36.

    PNR Directive, Article 1.

  37. 37.

    Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security, OJ L 215, 11.8.2012, p. 5–14.

  38. 38.

    Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service, OJ L 186, 14.7.2012, p. 4–16.

  39. 39.

    Article 52(3) of the Charter: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”.

  40. 40.

    See similarly Article 8(2) of ECHR: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

  41. 41.

    “In this connection, it must be pointed out that any measure based on the premise that one or more of the characteristics set out in Article 2(e) of the envisaged agreement may be relevant, in itself or in themselves and regardless of the individual conduct of the traveller concerned, having regard to the purpose for which PNR data is to be processed, namely combating terrorism and serious transnational crime, would infringe the rights guaranteed in Articles 7 and 8 of the Charter, read in conjunction with Article 21 thereof” (Opinion 1/15, 2017a).

  42. 42.

    “Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” (Digital Rights Ireland, 2014).

  43. 43.

    VIS Regulation, Article 9(4).

  44. 44.

    ETIAS Regulation, Article 17(2).

  45. 45.

    VIS Regulation, Article 9(4).

  46. 46.

    With regard to fingerprints in S. and Marper v. UK, the ECtHR noted that they “objectively contain unique information about the individual concerned, allowing his or her identification with precision in a wide range of circumstances”.

  47. 47.

    See, for example: Proposal for a Regulation of the European Parliament and of the Council establishing the conditions for accessing the other EU information systems and amending Regulation (EU) 2018/1862 and Regulation (EU) yyyy/xxx [ECRIS-TCN], 7 January 2019, COM(2019) 3 final; Proposal for a Regulation of the European Parliament and of the Council establishing the conditions for accessing other EU information systems for ETIAS purposes and amending Regulation (EU) 2018/1240, Regulation (EC) No 767/2008, Regulation (EU) 2017/2226 and Regulation (EU) 2018/1861, 7 January 2019, COM(2019) 4 final.

  48. 48.

    General Data Protection Directive (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119, 4.5.2016, p. 1–88), Police Directive (Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119, 4.5.2016, p. 89–131; Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by Union institutions, bodies, offices, and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39–98, and Europol Regulation (Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA, and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53–114.

  49. 49.

    The general purpose of the SIS is “to ensure a high level of security within the area of freedom, security and justice of the Union”, as provided in Article 1 of Regulation (EU) 2018/1861 and Regulation (EU) 2018/1862.

  50. 50.

    Paragraph 2 of Article 2 of the Interoperability Regulations stipulates the following objectives: (a) to improve the effectiveness and efficiency of border checks at external borders; (b) to contribute to the prevention and combating of illegal immigration; (c) to contribute to a high level of security within the area of freedom, security and justice of the Union, including the maintenance of public security and public policy and safeguarding security in the territories of the Member States; (d) to improve the implementation of the common visa policy; (e) to assist in the examination of applications for international protection; (f) to contribute to the prevention, detection and investigation of terrorist offences and of other serious criminal offences; (g) to facilitate the identification of unknown persons who are unable to identify themselves or unidentified human remains in the case of a natural disaster, accident or terrorist attack.

  51. 51.

    Interoperability Regulations, Articles 8, 12, 17 and 25.

  52. 52.

    For an overview of law enforcement access to AFSJ databases, see: Vavoula, N. (2020). Consultation of Immigration Databases for Law Enforcement Purposes: A Necessary and Proportionate Interference with Privacy and Data Protection Rights?. Available at: https://www.academia.edu/41195137/_Consultation_of_Immigration_Databases_for_Law_Enforcement_Purposes_A_Necessary_and_Proportionate_Interference_with_Privacy_and_Data_Protection_Rights (Accessed: 2.5.2020).

  53. 53.

    Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, 23 November 1995, p. 31–50.

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  1. Institute of Criminology at the Faculty of Law, Ljubljana, Slovenia

    Pika Šarf

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    Aleš Završnik

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    Vasja Badalič

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Šarf, P. (2021). Automating Freedom, Security and Justice: Interoperability of AFSJ Databases as a Move Towards the Indiscriminate Mass Surveillance of Third-Country Nationals. In: Završnik, A., Badalič, V. (eds) Automating Crime Prevention, Surveillance, and Military Operations. Springer, Cham. https://doi.org/10.1007/978-3-030-73276-9_5

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