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• 1. Introduction

1. Introduction

The European Border and Coast Guard Agency, Frontex, has been implicated in a number of serious scandals in recent years. Its involvement in brutal violations of fundamental rights at the Greek borders led to the resignation of the executive director, Fabrice Leggeri, and a catalogue of other serious violations has been documented.[1] An array of legal actions have been filed against the agency for violations of human rights in Greece, and a court ruling eventually forced it to halt most of its operations in Hungary.[2] It also stands accused of multiple procedural and administrative failings that undermine the rights of EU and non-EU citizens alike: there are nine open cases lodged with the European Ombudsman concerning Frontex, on top of 59 cases[3] in which decisions have already been taken.[4]

Many of these scandals have followed the vast expansion of the agency’s tasks and powers in 2019 that are seeing it establish a standing corps of 10,000 border guards, whilst acquiring its own surveillance equipment and vehicles. The extent of the malpractice has been so severe that the European Parliament refused to sign off Frontex’s 2020 budget.[5] Nevertheless, the agency continues to participate in human rights violations, for example through its partnership with the so-called Libyan Coast Guard. Frontex plays a direct role in assisting interception operations at sea by sharing surveillance imagery and information that leads to people being taken back to mistreatment and abuse in Libya.[6]

At the same time as the agency’s growing operational powers and exposure of its involvement in violence and violations have dominated headlines and political debate, the agency has quietly been assigned new powers to obtain, access and use personal data in its operations. These developments have not gone entirely unnoticed. The “Personal Data for Risk Analysis” (PeDRA) project, launched jointly with Europol, sought to use data collected by Frontex from “debriefing” interviews with migrants[7] to feed Europol’s databases and analyses. In the face of opposition from its own data protection officials, Frontex sought to gather genetic data and data on sexual orientation, and to gather information not just from people suspected of involvement in criminal activities, but from victims and witnesses as well.[8] Press coverage was followed by criticism from the European Data Protection Supervisor[9] and MEPs,[10] and the project was put on hold.[11]

It is also well-established that Frontex has considerable interest in developing and deploying new technologies. It has sponsored research on the use of artificial intelligence for border controls, “technology foresight on biometrics for the future of travel,” and “Weak Signals in Border Management and Surveillance Technologies”, [12] as well as having a role in influencing EU security research priorities.[13] It is both politically committed and legally obliged[14] to ensure the use of advanced technologies for border surveillance and control.

Many of those technologies will rely upon novel ways to harvest and use the personal data of migrants, refugees and other people travelling to the EU, and many of them will be developed on the basis of existing databases and technical systems. This briefing elucidates those systems – in particular, the EU’s large-scale policing and immigration databases – and explains the types of data they hold, what Frontex is able to access, the reasons for doing so, and what the agency can do with that data. It divides the agency’s use of data into two forms (operational and statistical) and provides an overview of the agency’s role in the EU’s emerging “travel intelligence” architecture. It aims to inform understanding, analysis and critique of the agency and its role, with a view to making it possible to better understand, engage with and challenge future developments in this area.

Notes

[1] Jennifer Rankin, Head of EU border agency Frontex resigns amid criticisms, 29 April 2022 The Guardian https://www.theguardian.com/world/2022/apr/29/head-of-eu-border-agency-frontex-resigns-amid-criticisms-fabrice-leggeri

Prakken d’Oliveira, EU agency Frontex charged with illegal pushbacks, 2021 https://www.prakkendoliveira.nl/en/news/news-2021/eu-agency-frontex-charged-with-illegal-pushbacks; ‘Revealed: The OLAF report on Frontex’,

[2] Frontex suspends operations in Hungary over asylum system, info migrants 28 January 2021: https://www.infomigrants.net/en/post/29917/frontex-suspends-operations-in-hungary-over-asylum-system. The decision to continue supporting return operations came in defiance of the opinion of the Fundamental Rights Officer expressed in a report that remained until now secret, cf. https://euobserver.com/migration/155320

[3] Figures obtained via the European Ombudsman’s website, https://www.ombudsman.europa.eu/en/search-inquiries?docTypes=EODECISION&institutions=21

[4] ‘EU: Legal action against Frontex's operations in Greece initiated at the European Court of Justice’, Statewatch, 26 May 2021, https://www.statewatch.org/news/2021/may/eu-legal-action-against-frontex-s-operations-in-greece-initiated-at-the-european-court-of-justice/. The Ombudsman’s investigations include one on “how the European Border and Coast Guard Agency assesses the potential human rights risk and general impact before providing assistance to non-EU countries to develop surveillance capabilities.”

[5]Nikolaj Nielsen, 'Slap in the face': European Parliament refuses to endorse Frontex budget, EU Observer, 18 October 2022https://euobserver.com/migration/156299

[6] Arthur Carpentier, Marceau Bretonnier et Cellule Enquête vidéo, ‘Des appareils de surveillance de Frontex sont utilisés par les gardes-côtes libyens pour intercepter illégalement des migrants’, Le Monde, 23 November 2022, https://www.lemonde.fr/international/article/2022/11/23/enquete-comment-des-appareils-de-surveillance-de-frontex-sont-utilises-par-les-gardes-cotes-libyens-pour-intercepter-illegalement-des-migrants_6151323_3210.html; Matthias Monroy, ‘WhatsApp to Libya: How Frontex uses a trick to circumvent international law‘, Security Architectures in the EU, 8 October 2021, https://digit.site36.net/2021/10/08/whatsapp-to-libya-how-frontex-uses-a-trick-to-circumvent-international-law/

[7] Cova Bachiller López and Fran Morenilla, ‘Questioning the interviewers: Frontex’s covert interrogations at the Spanish southern border’, Statewatch, 3 August 2022, https://www.statewatch.org/analyses/2022/questioning-the-interviewers-frontex-s-covert-interrogations-at-the-spanish-southern-border/

[8] Statewatch, Document collection: Frontex and "operational personal data", https://www.statewatch.org/observatories/frontex/document-collection-frontex-and-operational-personal-data/

[9] ‘Exchange of personal data between Frontex and Europol - Wojciech Wiewiórowski’, 8 November 2022, https://edps.europa.eu/data-protection/our-work/publications/speeches-articles/2022-11-08-exchange-personal-data-between-frontex-and-europol-wojciech-wiewiorowski_en

[10] Luděk Stavinoha, Apostolis Fotiadis and Giacomo Zandonini, ‘Frontex tripped in plan for intrusive surveillance of migrants’, Balkan Insight, 7 July 2022, https://balkaninsight.com/2022/07/07/eus-frontex-tripped-in-plan-for-intrusive-surveillance-of-migrants/

[11]Apostolis Fotiadis and Luděk Stavinoha, ‘European Parliament scrutinises Frontex surveillance programme after BIRN investigation’, Balkan Insight, 7 November 2022, https://balkaninsight.com/2022/11/07/european-parliament-scrutinises-frontex-surveillance-programme-after-birn-investigation/

[12] ‘Artificial intelligence-based capabilities for the European Border and Coast Guard’, 26 March 2021, https://frontex.europa.eu/media-centre/news/news-release/artificial-intelligence-based-capabilities-for-european-border-and-coast-guard-1Dczge; ‘Frontex publishes technology foresight on biometrics for the future of travel’, 21 October 2022, https://frontex.europa.eu/future-of-border-control/eu-research/news-and-events/frontex-publishes-technology-foresight-on-biometrics-for-the-future-of-travel-us6C6v; ‘Weak Signals in Border Management and Surveillance Technologies’, 2022 https://publications.jrc.ec.europa.eu/repository/handle/JRC128871 

[13] Frontex, ‘Frontex to provide border security expertise to European Commission’s research projects’, 6 February 2020, https://frontex.europa.eu/media-centre/news/news-release/frontex-to-provide-border-security-expertise-to-european-commission-s-research-projects-ZrCBoM

[14] Article 3(1)(j), Regulation (EU) 2019/1896, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32019R1896