Ladies and gentlemen, distinguished experts,
Thank you for inviting me to address you here today, and present the Fundamental Rights Agency’s draft paper concerning the fundamental rights implications of interoperable information systems in the area of borders and security. My thanks also to the colleagues from the Commission for annexing a summary of our paper to their own draft report on the activities of this high-level group and for proposing continued FRA involvement on this topic.
Obtaining more information about those entering the EU brings both risks and opportunities from a fundamental rights perspective. If you will allow, I will speak first of the potential advantages, before going on to talk of the very real challenges that remain, and finish with suggestions of means to avoid fundamental rights violations in the first place.
To begin with, then, the positive aspects. Interoperability can provide new opportunities to offer more robust and timely protection to those entering the EU. In the case of minors, for example, interoperability can support the detection of missing children or those who have been trafficked, resulting in a targeted response.
At the same time, quick and easy access to relevant personal data about third-country nationals is a crucial security and law enforcement tool, allowing us to intercept terrorists, reduce security threats and fight crime.
Making the EU’s IT systems interoperable can also help people seeking international protection who have difficulty in proving their identity, perhaps because they are not in possession of genuine travel documents. Past records in other systems may also help establish the identity of a person forced to flee persecution or other risk of harm. If information on an asylum seeker’s status is visible in other information systems, the risk of apprehension, detention or return by error is reduced.
Ladies and gentlemen,
There are a number of rights in the Charter of Fundamental Rights of the EU that are relevant to any discussion on interoperability. Above all, I would mention the rights to private life (Article 7 of the Charter) and the protection of personal data (Article 8 of the Charter).
Interoperable information systems in the area of borders and security can also raise issues regarding a number of other Charter rights, such as the right to good administration and the right to an effective remedy (Articles 41 and 47), the prohibition of torture and inhuman or degrading treatment or punishment (Article 4), liberty and security of person (Article 6), and integrity of the person (Article 3). The broader availability of data can in itself have additional implications – both positive and negative – in the field of asylum (Articles 18 and 19), rights of the child (Article 24) and equality before the law (Articles 20).
With the important exception of the prohibition of torture laid out in Article 4, none of the rights I have mentioned are absolute. However, where a chosen solution leads to fundamental rights limitations, this needs to pursue a clearly demonstrated legitimate purpose, must genuinely meet objectives of general interest recognised by the EU as well as the need to protect the rights and freedoms of others, and must honour the essence of the right. Limitations must always respect the principles of legality, necessity and proportionality.
In moving towards interoperable systems, the Fundamental Rights Agency considers that seven areas require careful attention.
First, interoperable databases are likely to be highly attractive for those trying to access personal data by illegal means. This could include organised crime groups, as well as hackers linked to foreign governments seeking to prevent political opponents from leaving those states.
Second, because interoperability will make it easier to access data, it also increases the chances that such data is unlawfully shared with third countries. Rules prohibiting the sharing of information with third countries about who has applied for international protection in the EU are not always systematically applied, posing the risk that the individuals or their families could become subject to dangerous retaliation measures.
Third, interoperability could introduce the option of signalling the presence of any individual in one of the other IT systems to which a given official does not have legal access – known as a ‘flagged’ hit. The official would not know the details of the data entry, but even the knowledge that such an entry exists, for example in the European Criminal Records Information System ECRIS, may influence decisions taken about the individual involved.
Fourth, when IT systems become interoperable, the quality of the data is of paramount importance. In particular due to the high degree of credibility attached to biometric data as well as the technical complexity of its processing, it is difficult to rebut errors. In the case of alphanumerical data, the entry of incorrect personal data into one database may result in the transfer of inaccurate information from one system to another. FRA recently carried out a small-scale but nonetheless representative survey as part of its project on the use of biometric data in EU systems in the area of borders, visa and asylum. We asked staff at selected EU consulates how often they or their colleagues see incorrect or out-of-date personal data entered into one of the IT systems. Up to half of the staff we interviewed reported incidents of wrong matches or inaccurate data.
Fifth, interoperability poses additional challenges when it comes to the rights of children. For example, their physical development may reduce the reliability of biometric data, particularly over time. Information on criminal records may also have a disproportionate impact on children, for instance when they relate to immigration offences for which the children cannot be held responsible.
Sixth, interoperability can have serious human rights implications for irregular migrants. Because the combined systems make it easier to identify irregular migrants, such migrants may in consequence avoid situations in which they fear apprehension, even if that means they cannot access such resources as medical facilities, NGOs offering legal advice, or schooling.
Finally, there is the risk of discriminatory profiling. The data contained in IT systems can be used for risk assessment or profiling. Risk assessment or profiling is not a violation of fundamental rights, but discriminatory profiling is. The chance of this taking place increases if IT systems are interoperable, as several data categories revealing sensitive data such as, race, ethnicity, health, sexual orientation, and religious beliefs can then be accessed simultaneously for profiling purposes.
Ladies and gentlemen,
At the Fundamental Rights Agency, much of our time is spent in addressing fundamental rights violations that have already taken place. However, an important part of our role is also to propose how such violations can be avoided in the first place.
In that spirit, let me return briefly to three key issues that I have touched on above: data protection, children, and asylum.
- Data protection: It is essential that any interoperable system is designed so as not to adversely affect the core principles of data protection. This includes respect for the purpose limitation of each individual EU IT system, its specific safeguards and retention periods. Neither should interoperability lead to the collection and processing of more data than necessary. The concept of data protection by default, commonly referred to as ‘privacy by design’, is a precondition for ensuring that interoperable systems are in line with core data protection principles. One of the advantages of interoperability is the opportunity it provides to authorities to become aware of inaccurate data. Relevant authorities therefore need to develop standardised procedures to automatically verify data stored in other IT systems and to immediately correct inaccuracies.
- Children: In order to support the detection of missing children or children subject to trafficking in human beings, interoperable systems should include effective recording of missing children, and an additional focus on child protection in the individual IT systems themselves. This should be combined with well-functioning referral mechanisms and tailor-made training of practitioners who may encounter children in need of protection.
- Irregular migrants: FRA guidelines on the rights-compliant apprehension of irregular migrants indicate that social service providers should not share information with immigration authorities, and that possibilities for victims and witnesses to report crime without fear of being apprehended should be considered.
I have sought in my remarks today to make clear that interoperability is not intrinsically a fundamental rights violation. However, it is essential that we have adequate safeguards and mechanisms present in the interoperable IT systems to ensure the rights set out in the Charter of Fundamental Rights are upheld without exception for everyone entering and residing in the EU.
With fundamental rights safeguards in place and their implementation assured in practice, the opportunities offered by interoperability can be taken advantage of to the full.