Last semester, the Council of the European Union and the European Parliament voiced technical, operational and financial concerns regarding the overall implementation of the ‘Smart Borders Package’. In this context, the European Commission initiated an exercise aimed at identifying the most adequate ways for its implementation. The aforementioned exercise would include a Technical Study, which conclusions would be subsequently tested through a Pilot project.
The Technical Study, prepared by the European Commission, has been recently issued.
But let’s create some context here…
The EU is currently assisting to a very important increase in the number of people crossing its borders, namely through air. I am talking about millions of people crossing, for the most diversified reasons, every day, at several points of the external border of the EU. This very fact transforms airports in the most relevant way in and out of the EU.
Therefore, if the border management, namely through the check in procedures, is not duly modernized and dealt with by a proper legal and technical structure, longer delays and queuing are expected. Adding to this, there is also a paramount concern of security, due to the growing numbers of foreign fighters and refugees.
Indeed, under the current framework – the Schengen Borders Code – a thorough check at entry of all travellers crossing the external border is required, regardless their level of risk or how frequently they actually travel in and out the EU. Furthermore, the period of time a traveller stays in the Schengen area is calculated based solely on the stamps affixed in the travel document.
So one of the main goals of the ‘Smart Borders’ initiative is to actually simplify and facilitate the entrance of “bona fide” travellers at the external borders, significantly shortening the waiting times and queues they have to face. Additionally, the initiative aims at preventing irregular border crossing and illegal immigration, namely through the detection of overstays, i.e., people who have entered the EU territory lawfully, but have stayed longer than they were authorized to.
In this context, biometrics 2)The concept refers to metric related to human features, i.e., to elements which are specific to the physical or psychological identity of a person and, therefore, allow to identify that person. Physiological biometrics, which we are specifically considering in this context, refer to human characteristics and traits, such as face, fingerprints, eye retina, iris and voice. appear as a solution. In fact, biometric technologies 3)Technologies which are able to electronically read and process biometric data, in order to identify and recognize individuals. are cheaper and faster than ever and are increasingly used both in the private and the public sector. They are mainly used on forensic investigation and access control systems, as they are a considered an efficient tool for truthful identification and authentication.
Indeed, the use of biometrics data for other purposes than law enforcement is currently being furthered at the EU level. The biometrics systems firstly implemented were deployed in regard of third country nationals, such as asylum or visa applicants (Eurodac4)Eurodac is a large database of fingerprints of applicants for asylum and illegal immigrants found within the EU. The database helps the effective application of the Dublin convention on handling claims for asylum. and VIS)5)The Visa Information System, which ‘VIS’ stands for, allows Schengen States to exchange visa data. and criminals (SIS and SIS II)6) The Schengen Information System, which ‘SIS’ stands for, is the largest information system for public security in Europe.. In 2004 it has been enlarged to the ePassport of the European Union.
Later on, in 2008, the European Commission issued a Communication entitled ‘Preparing the next steps in border management in the European Union’, suggesting the establishment of an Entry/Exit System and a Registered Traveller Programme.
Subsequently, in 2013, the European Commission submitted a ‘Smart Borders Package’, including three legislative proposals. In this regard, the proposal for an Entry/Exit System (hereafter EES) was intended to register entry and exit data of third country nationals crossing the external borders of the Member States of the European Union. Likewise, the proposal regarding a Registered Traveller Programme (hereafter RTP) aimed at offering an alternative border check procedure for pre-screened frequent third-country travellers, thus facilitating their access to the Union without undermining security. In parallel, the purpose of the third proposal was to amend accordingly the Schengen Borders Code.
The foremost aspiration to be achieved with these instruments was for a better management of the external borders of the Schengen Member States, the prevention of irregular immigration, information regarding overstayers, and the facilitation of border crossing for frequent third country national travellers.
Therefore, the EES would allow to record the time and place of entry and the length of stays in an electronic database, and, consequently, to replace the current stamping of passports system. In parallel, the RTP would allow frequent travellers from third countries to enter the EU, subject to a simplified border checks at automated gates.
Although being generally considered an welcomed initiative in terms of modernization, this has awaken, nevertheless, some concerns regarding privacy and data protection. Indeed, the proposal focuses on the use of new technologies to facilitate the travelling of frequent travellers and the monitoring the EU border crossing of nationals of third-countries. In practice, it means that hundreds of millions of EU residents and visitors will be fingerprinted and their faces electronically scanned.
Last year, the European Data Protection Supervisor (EDPS) adopted a very negative position regarding the proposal to introduce an automated biometrics-based EES for travellers in the region, calling it “costly, unproven and intrusive“. The data retention period in the EES, the choice of biometric identifiers, and the possibility of law enforcement authorities to access its database were among the main concerns raised.
As the proposed system would require ten fingerprints to confirm the identity of individuals at borders and to calculate the duration of their stay in the EU, the EDPS pointed to the unnecessary collection and excessive storage of personal information, considering that two or four fingerprints would be sufficient for identification purposes. The EDPS also expressed apprehension regarding the access to the EES database which would be granted to law enforcement authorities, even if the individuals registered were not suspects of any criminal offence. Questions were also raised regarding the possible exchange of information with third countries which do not have the same level of data protection.
Since then, the Technical Study – which I referred to at the beginning of this post – has been conducted in order to identify and assess the most suitable and promising options and solutions.
According to the document, one fingerprint alone can be used for verification, but it is acknowledged that a higher number of fingerprints could lead to better results in terms of accuracy, despite a more difficult implementation, “in particular, taking into account the difficulty of capturing more than 4 FPs [fingerprints] at land borders where limitations in enrolment quality and time may rise regarding the travellers in vehicle and use of hand-held equipment”. Nevertheless, the enrolment of four or eight fingerprints is recommended as one of the test cases of the pilot project.
Moreover, the study noted that “if facial image recognition would be used in combination with FPs [fingerprints], then it has a beneficial impact on both verification and identification in terms of speed and security leading to lower false rejection rate and reduction in number of FPs enrolled”. In addition, the Study has concluded that the use of facial identification alone is an option to be considered for EES and RTP.
Thus said, concerns regarding security should not take the limelight of the fact that biometric data are personal data. In fact, fingerprints can be qualified as sensitive data in so much as they can reveal ethnic information of the individual.
Therefore, biometric data can only be processed if there is a legal basis and the processing is adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed. In this context, the purpose limitation is a paramount principle. The definition of the purpose for which the biometric data are collected and subsequently processed is therefore a prerequisite to their subsequent use.
In parallel, the accuracy, the data retention period and the data minimisation principles have to be considered, as the data collected should be precise, proportionate and kept for no longer than what is necessary regarding the purposes for which it was firstly collected.
Besides, the processing of biometric data shall be based on the legal grounds of legitimacy, such as consent of the data subject, which must be freely given, specific and fully informed. In this context, the performance of a contract, the compliance with a legal obligation and the pursuit of legitimate interests of the data controller will also constitute legal grounds to that effect.
It must be noted that the processing of biometric data raises these and other important privacy and data protection concerns that, more than often, are not acknowledged by the public.
To start with, biometric data, in general, and fingerprint data, in particular, is irrevocable due to its stability in time. This makes possible data breaches all the most dangerous.
In addition, the highly complex technologies which are able to electronically read and process biometric data and the diversified methods and systems employed in the collection, processing and storage cannot ensure a full accuracy, even though fingerprints do present a high level of precision. In fact, a low quality of the data or of the extraction algorithms may steer to wrongful results and, therefore, to false rejections or false matches. This might lead to adverse consequences for individuals, namely regarding the irreversibility of the decisions taken based on a wrong identification.
Moreover, the risks associated with the storage of biometric data and the possible linking with other databases raises concerns about the security of the data and of uses non-compatible with the purposes which initially justified the processing.
Thus said, we will have to wait for the results of the Pilot Project which is being developed by the eu-LISA Agency 7)The acronym stands for Agency for the Operational Management of large-scale IT Systems in the area of Freedom, Security and Justice., and is expected to be completed during 2015, in order to verify the feasibility of the options identified in the Technical Study.
References [ + ]
|1.||↑||Copyright by Frettie under the Creative Commons Attribution 3.0 Unported|
|2.||↑||The concept refers to metric related to human features, i.e., to elements which are specific to the physical or psychological identity of a person and, therefore, allow to identify that person. Physiological biometrics, which we are specifically considering in this context, refer to human characteristics and traits, such as face, fingerprints, eye retina, iris and voice.|
|3.||↑||Technologies which are able to electronically read and process biometric data, in order to identify and recognize individuals.|
|4.||↑||Eurodac is a large database of fingerprints of applicants for asylum and illegal immigrants found within the EU. The database helps the effective application of the Dublin convention on handling claims for asylum.|
|5.||↑||The Visa Information System, which ‘VIS’ stands for, allows Schengen States to exchange visa data.|
|6.||↑||The Schengen Information System, which ‘SIS’ stands for, is the largest information system for public security in Europe.|
|7.||↑||The acronym stands for Agency for the Operational Management of large-scale IT Systems in the area of Freedom, Security and Justice.|