EU: Council Presidency seeks “common vision” on US database access demands
Topic
Country/Region
25 January 2024
The US wants to vet travellers through direct access to foreign databases, including those of EU member states. Bilateral discussions are ongoing and are at different stages in different states, but it remains unclear whether the agreements are an EU or national competence. The US is organising an “informal information meeting” for EU member states and institutions, after which the Presidency wants to develop a “common vision”.
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Image: Thomas Hawk, CC BY-NC 2.0
Direct database access
The Department of Homeland Security says that under the US plan (pdf), authorities would be able to “compare the fingerprints of travellers seeking entry or immigration status… against their appropriate criminal, terrorist, and identity records,” and receive substantial amounts of personal data in case a comparison reveals a match.
In some cases, the US will pay for the biometric infrastructure in foreign states, and data they collect will be stored in US databases. When an individual travels to the US and is fingerprinted, “DHS will not query a partner fingerprint database but will instead query the enrolled partner holdings retained in IDENT/HART,” the enormous biometric database maintained by DHS.
While the latter model is not likely to be deployed in many European states, who already have their own biometric collection and storage systems, there appears to be some confusion amongst EU member states as to what exactly the US is proposing.
Clear as mud
A note (pdf) circulated by the Belgian Council Presidency to the Working Party on Justice and Home Affairs Information Exchange (IXIM) on 10 January suggest that, as things stand, confusion reigns.
The Presidency document says there is a “lack of clarity on what exactly the US wants and the extent to which EBSP [Enhanced Border Security Partnership, the US plan] is linked to the VWP [US Visa Waiver Programme].”
This means “there is no clear understanding whether negotiating on the EBSP is a Union or a Member States’ competence,” and this “makes it difficult to determine whether or not the Commission should ask for a mandate to negotiate on behalf of the Union or if it is up to the Member States to have bilateral negotiations.”
The Presidency also says it is not clear “which databases the US wants access to... in what way they want access,” nor “for which purposes the information will be used.”
Because of this confusion, “there is no consensus on how to proceed with this file,” but there is nevertheless “consensus among the Member States that there is a need for this coordination within the IXIM WP.”
Negotiations ongoing
This lack of clarity has not stopped “several” member states from starting negotiations with the US, and “some are already well advanced in their negotiations.”
The Presidency requests those member states that “are well advanced in the negotiations” to share information on how to “ensure compliance with existing EU legislation, in particular the General Data Protection Regulation and the Law Enforcement Directive.”
As Statewatch reported recently, Norway is one of the countries that has been talking to the US, with authorities in the Nordic state considering the US proposals “challenging” from a legal perspective.
Date at the embassy
It may be that a proposal from the US for an “informal meeting”with EU institutions and member states provides some answers to these unanswered questions.
The Presidency has called for member states to ask “all relevant questions regarding EBSP,” and to “submit their questions ahead of the information meeting with the US,” in order to “guarantee the presence of the competent experts.”
The document also suggests that the US has been providing different information to different states, noting that the upcoming meeting “is an opportunity for the Member States to receive identical information simultaneously from the US.”
At the same time, the Presidency wants member states to use IXIM meetings to share information, and to be “open and transparent” about their bilateral discussions with the US.
Foregone conclusion?
While the date for the meeting at the embassy had not been set when the Presidency drafted the document in question, another date is looming.
The US has apparently set 2027 as a deadline for compliance with the new border data plan, and the Presidency notes that “the amount of (legal and technical) preparation needed to meet the 2027 deadline makes the need for clarity and stronger coordination more pressing.”
This means, according to the Presidency, there is a need for a “common vision” and “a way forward.”
It is unclear whether, beyond legal and technical preparation, democratic political debate is foreseen. Although the Presidency wants “transparency and openness” from member states to one another and EU institutions, the document makes no mention of the need for transparency and openness towards the public whose data the US wants direct access to.
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Further reading
US migration data demands are “challenging”, say Norwegian authorities
Norwegian government officials have met with their US counterparts to discuss the US' demands for direct access to biometric, identity and criminal record databases as part of its new “border security” plan, according to a report in the newspaper Bergens Tidende. The Norwegian police have apparently described the proposals as “challenging,” given existing legal requirements.
USA seeks bilateral deals for access to European “criminal, terrorist, and identity records”
The USA’s proposed Enhanced Border Security Partnerships would entail “systematic and continuous” exchanges of sensitive personal data between participating states. The European Commission has indicated that its working group with the USA has stopped operating, and that plans are instead being negotiated bilaterally between member states and the USA.
EU and USA plough ahead with secret discussions on biometric data exchange scheme
The EU and USA are discussing a proposed “Enhanced Border Security Partnership” which would involve “continuous and systematic” transfers of biometric data in both directions, but the Commission has refused to release documents that would provide further information to the public.
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