Smart Borders: the challenges remain a year after its adoption

This package will replace the manual stamping of passports with the automation of certain preparatory border control procedures and store biometric information of non-EU visitors traveling across borders in the Schengen zone.

This new system foresees the recording of information such as the name, travel document, fingerprints, facial image, date and place of birth from non-EU nationals when entering, exiting or being refused entry into the Schengen area. The data will be retained for three years, or five years for those who overstay. The system will be interconnected with the Visa Information System (VIS) database, and allow law enforcement authorities to access the database for criminal identification and intelligence to prevent serious crime and terrorism. The package was signed on 30 November 2017, and the Entry/Exit System is scheduled to become fully operative by 2020.

Unlike the previous Smart Borders Package from 2013, the text gathered a broad consensus among policy-makers. However, several stakeholders have expressed concerns about the risks to human rights. The European Data Protection Supervisor (EDPS) had already warned in 2013 against potential violations of the EU Charter of Fundamental Rights, particularly Articles 7 and 8, regarding the respect for private and family life and the protection of personal data, and recommended additional improvements in the revised proposal on 2016. In particular, the EDPS recommended that additional improvements as regards the significant collection of data from non-EU nationals, seriously affecting their freedoms and rights. Moreover, the EDPS recommended increasing the protection of data regarding the retention periods, the collection of facial images and fingerprints and the use of biometric data in general. The Fundamental Rights Agency also warned in its Report “Fundamental rights and the interoperability of EU information systems: borders and security” about the disproportionate effects on the rights of migrants in an irregular situation and about the fundamental rights risks of unlawful access or use of personal data. Similarly, EDRi expressed its view responding to a public consultation in 2015, considering the Smart Borders initiative disproportionate and unnecessary as regards its data collection plans. Finally, the package was criticised in a study commissioned by the European Parliament in 2016, concluding that the large-scale collection and storage of personal data including biometric data interfere with the EU Charter of Fundamental Rights and the right to private life under the European Convention on Human Rights (ECHR).

Beyond the criticisms regarding the respect of human rights, the Smart Borders package is likely to be very costly. The European Commission estimated the cost at around 480 million euros – which has been criticised by civil liberties groups such as Statewatch defining the package as “the most expensive exercise to collect migration statistics in the history of the world”. Statewatch also mentions in its report that “the EU’s budgets for law enforcement, counter-terrorism, border control and security research amounted to €3.8 billion in the period between 2007 and 2013. In the current period, which runs from 2014 to 2020, they have grown to a total of some €11 billion (…) a significant development given that a decade ago the bloc had no dedicated budgets for security, justice or home affairs.” The organisation warns about the dangers of the “surveillance society”, considering that many of the controversial measures of the Smart Border package – mainly being biometric data – are being “tested” on migrants and asylum seekers at the borders, taking advantage of their vulnerable position and the “legitimate interest” ground used to collect this information.

We still cannot foresee the consequences of the entry into operation of the Smart Borders package, but the risks for both European and non-European citizens have been predicted as being very high. Therefore, although we will have to wait until 2020 to see the real impact of the package, it is important not to lose sight of it in order to respond to the challenges that may arise.

Read more:

Fundamental Rights Agency: “Fundamental rights and the interoperability of EU information systems: borders and security” (07.2017)
http://fra.europa.eu/en/publication/2017/fundamental-rights-interoperability

Statewatch: “Market Forces: the development of the EU Security-Industrial Complex” (31.08.2017)
http://statewatch.org/analyses/marketforces.pdf

EDRi-Gram:Smart Borders package: Unproportionate & unnecessary data collection (04.11.2015)
https://edri.org/smart-borders-package-unproportionate-unnecessary-data-collection/

(Contribution by Maria Roson, EDRi intern)