Using technology to draw borders: fundamental rights for the Smart Borders initiative

AuthorMaegan Hendow, Alina Cibea, Albert Kraler
DOIhttps://doi.org/10.1108/JICES-02-2014-0008
Pages39-57
Publication Date09 Mar 2015
Using technology to draw
borders: fundamental rights for
the Smart Borders initiative
Maegan Hendow, Alina Cibea and Albert Kraler
Research Department, International Centre for Migration Policy
Development, Vienna, Austria
Abstract
Purpose – This paper aims to examine the primary fundamental rights concerns related to biometrics
and their use in automated border controls (ABCs), as well as how these issues converge in the European
Commission’s Smart Borders proposal.
Design/methodology/approach This paper draws on extensive background research and
qualitative in-depth interviews conducted in 2013 for the European Union (EU) FP-7 project “FastPass –
A harmonized, modular reference system for all European automatic border crossing points”.
Findings – The Smart Borders proposal not only compounds the individual concerns related to the use
of biometrics in border controls and automatisation thereof, but also has serious issues of its own,
premier among which is the imposition of a two-tier border control system.
Social implications – The paper is a catalyst for open debate on the fundamental questions of how
we got to this point and where do we want to go. It questions the process by which the increased use of
IT in border controls has become the norm and policy trend in Europe, and discusses where the limits
could be drawn from a fundamental rights perspective. In particular, it warns against the
institutionalisation of a two-tier border control system among third-country nationals.
Originality/value – Little attention is given to the fundamental rights concerns raised for EU and
non-EU citizens as related to biometrics and their use in ABCs, and how these issues are reproduced in
the Smart Borders proposal. The paper lls this gap by taking a bottom-up approach: examining the
implications of individual elements of the proposal to see their impact on the broader policy.
Keywords Biometrics, Automated border control, EES, Fundamental rights, RTP, Smart Borders
Paper type Research paper
1. Introduction
Following a long period of transformation in Europe with regard to the
conceptualisation of and legislation on border control, recent developments involve an
increasing use of technological solutions, the main illustrations of which are the
employment of databases (and their ever higher level of interconnectedness), biometrics,
surveillance techniques and automatic border controls (ABC). Although they all
represent separate issues with their own set of ethical and fundamental rights concerns,
these different strands increasingly converge and are portrayed as sides of the same
The authors would like to acknowledge and thank the interview partners who took the time to
speak with us, their input was invaluable. The research was conducted within the framework of
a larger EU-funded project, “FastPass – A harmonized, modular reference system for all European
automatic border crossing points”, and the authors would like to thank the other partners of the
project for their support.
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1477-996X.htm
Smart Borders
initiative
39
Received 20 March 2014
Revised 20 March 2014
Accepted 9 October 2014
Journalof Information,
Communicationand Ethics in
Society
Vol.13 No. 1, 2015
pp.39-57
©Emerald Group Publishing Limited
1477-996X
DOI 10.1108/JICES-02-2014-0008
coin, where one requires another to be implemented. This convergence in itself raises a
series of ethical questions about the process by which this approach is becoming the
norm and global trend. Furthermore, it can be paired with a general discussion on
democracy and participation, touching upon issues of path dependency in
decision-making, as well as the lack of vigorous debate among the broader public or
even policymakers outside of the security-centred areas regarding the purpose, motives,
main drivers and efciency of advocated means to achieve the desired goals. Moreover,
this approach reects an implicit and unquestioned link between security concerns
(threats) and immigration (foreigners)[1]. This poses the danger that the security
approach is prioritised over fundamental rights concerns, without a debate on whether
this is a desired approach or even efcient for any legitimate public policy purposes. The
European Commission (EC)’s Smart Borders proposal represents a case in point of this
trend. In its current form, it compounds all the separate issues mentioned above, and
also raises additional questions of its own, particularly concerning its creation of a new
divide among third-country nationals along questionable lines and criteria[2].
In this setting, the present paper examines the main concerns of biometrics and
ABCs, as well as how they t into the Smart Borders proposal. Distinguishing the
fundamental rights perspective from the debates on ethics, the paper will primarily
examine the role and implications of fundamental rights concerns in this process, asking
questions about what brought us here and where do we want to go. At the same time it
acknowledges, but does not address in detail, the broader questions about the use of
biometrics in surveillance, nor does it dwell on the ethics of border control, which would
encompass broader aspects related both to the legitimacy of control, as well as to its
means and modes[3]. Furthermore, the paper will not enter into discussions regarding
the actual feasibility of the proposal, of which there is already extensive research
(Jeandesboz et al., 2013;Hayes and Vermeulen, 2012).
First, the paper will look into the main issues at play regarding biometrics and their
usage in ABCs, which are increasingly being implemented in Europe. Then it will focus
on the Smart Borders proposal, which demonstrates the larger approach of facilitated
freedom of movement for some and reinforced controls of others at the external borders
of the European Union (EU), through an unquestioned integration of biometrics and
ABC systems. The paper argues that the policy represents a trend of promotion of such
technologies as a European-wide panacea for security, without considering the
fundamental rights issues that are likely to arise. Moreover, similar to the divide created
by the Schengen approach between travellers (EU vs non-EU), the use of new
technologies in border control is buttressing new divides among third-country nationals
(“high risk”-“low risk”), the implication being that rights are not the same for everyone.
Such distinctions currently reect a mix of arguments related both to immigration
status and security concerns, enhancing the view that threats come from the outside and
that foreigners (especially poor ones) are potential suspects, subject to additional
controls.
2. Methodology
This article will present results from extensive background research and several
qualitative in-depth interviews conducted in 2013 with key stakeholders[4]. The work
has been supported by the FastPass project. The research leading to these results has
received funding from the EU Seventh Framework Programme (FP7/2007-2013) under
JICES
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