Warnings against arbitrariness and mass surveillance in EURODAC

The European Parliament is advancing its internal negotiations on the reform of the EURODAC database. EURODAC stores data from asylum-seekers since 2003. More recently, the database was increasingly expanded to gather more data, about more people and serving a larger set of purposes ranging from handling asylum applications, resettlement schemes to combating irregular migration and crime in general.

In September 2021, several organisations protecting the rights of people on the move, children and digital rights, including EDRi, urged policymakers to radically change the direction of the EURODAC reform. Based on the concerns of fundamental rights violations raised in our open letter, four Members of the European Parliament (MEPs) in charge of leading the negotiations sent additional questions on data protection related to the proposal to the European Data Protection Supervisor (EDPS).

The replies of the EDPS, obtained via a freedom of access request, confirm the fears and criticisms of civil society that the proposed reform contains new measures that are neither necessary nor proportionate, fails to provide evidence for its proposals and would generally increase the degree of arbitrariness and surveillance during migration management procedures. Some of the EDPS’ answers highlight that:

• The database is turned into a genuine law enforcement instrument as it gathers a large amount of data supposedly informing whether a person could be considered a ‘security threat’ and influences the decision of migration authorities to reject their application. The current text fails to provide clear and objective criteria to determine what constitutes a security threat. It means that this assessment is left entirely to the discretion of the law enforcement agent doing the checks. The agent would have the possibility to add any information they want in a ‘free text’ box – a form of data processing that does not meet the Court of Justice requirements of clarity and precision. The database is also open for consultation by any undefined national ‘competent authority’. The EDPS further notes a high risk of opacity in how the database will be accessed for law enforcement purposes, undermining data protection rights.
• The substantial expansion of the database brings many issues of necessity and proportionality. The addition of new categories of persons such as persons disembarked from search and rescue missions or eligible for resettlement inside the EU creates an incentive to also introduce differentiated treatments depending under which category people are registered. Moreover, introducing facial recognition in the database has still not been justified by objective evidence: no impact assessment proving that this would be “a necessary and substantial improvement of EURODAC” was carried out.
• The EDPS stresses that the interconnection of EURODAC with other migration and law enforcement databases “should not be an end in itself”. It bears the inherent risk of a “high level of false positive hits” and results “in severe consequences for vulnerable persons”.
• With regards to children’s rights, the EDPS recalls that EURODAC does not foresee any child protection objectives and yet it foresees the lowering of the age from 14 to 6 years old for the intrusive collection of biometric data. This measure is poorly justified and was not backed up by any evidence of necessity, proportionality and efficiency. It also raises serious concerns regarding law enforcement access to children data. The meager safeguards added at the stage of data collection (e.g. presence of a trained official and a responsible adult) are considered insufficient to meet the best interests of the child.

Ahead of the negotiations, EDRi alongside PICUM and Save The Children reminded the lead negotiators in the Parliament of these concerns and urged them to oppose the unjustified extension of the database, prevent the risks of human rights violations and build in strong safeguards against arbitrariness, mass surveillance and discrimination. This is vitally important to ensure that the EU abides by international asylum and migration law and standards.