The use of technology for the management of the EU/US Immigration and Asylum Policy- possible risks for fundamental rights protection

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ISSN 2193-2352

ISBN 978-3-631-80819-1 (Print)

E-ISBN 978-3-631-81719-3 (E-PDF)

E-ISBN 978-3-631-81720-9 (EPUB)

E-ISBN 978-3-631-81721-6 (MOBI)

DOI 10.3726/b16758

© Peter Lang GmbH

Internationaler Verlag der Wissenschaften

Berlin 2020

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Peter Lang – Berlin ∙ Bern ∙ Bruxelles ∙ New York ∙
Oxford ∙ Warszawa ∙ Wien

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About the author

Dr Marta Kołodziejczyk specializes in EU law and international human rights law. She graduated from Jagiellonian University in Krakow (MA) and Warsaw University (PhD). She then pursued her professional career at the Polish Institute of International Affairs under the supervision of professor Adam Daniel Rotfeld. She has had the opportunity to pay study visits to universities in Utrecht (Netherlands), Heidelberg (Germany), Miami-Florida Jean Monnet European Center of Excellence, Shanghai International Studies University and to attend scientific seminars at: the Warsaw based Helsinki Foundation for Human Rights, René Cassin International Human Rights Institute (Strasbourg), European University Institute in Florence, and Council of the European Union (Brussels) while pursuing scientific traineeship at the Human Rights Unit; at present she is associate of the Jagiellonian University Center for European Studies.

About the book

Ambient intelligence and the profiling activities authorized by modern technologies oblige us to renew our legislation in different directions. Traditionally, data protection law considers only the relationship between data controllers and data subjects positioned as independent entities. However, in the ambient intelligence reality where profiling activities proliferate, enabled by more and more sophisticated software algorithms, their societal impacts have to be taken into consideration by legislative bodies.

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Introduction

I Privacy and data protection-history and current state of law

1 The choice of new legislative instruments

2 Territorial scope

3 Reinforcement of the rights of data subjects

4 Right to be forgotten

5 Right to access and right to data portability

6 Enhancing the responsibility of controllers and processors

7 Responsibility of controllers and processors in the European case law

II European Union competence in the field of Asylum and Migration Policy (The area of freedom, security and justice)

1 Introduction

2 Power of migration technology

3 Biometrics

4 EU border and immigration data bases

III Possible risks of fundamental rights infringements posed by the digitalization of the EU immigration and asylum policy

1 Introduction

2 Digitalization of the EU migration policy versus fundamental rights standards

IV Between knowledge and power – use of technology for the management of immigration policy: European Union versus United States of America

1 Introduction

2 Data and privacy protection in the United States of America

3 Clashes between two western cultures of privacy

Final remarks

References

Internet sources

Case law

Documents

Introduction

It used to be a passport, both as a means to identify and sort people and as a requirement for the legitimate movement across territorial spaces that allowed states to assert their sovereign prerogative to regulate the entry and exits of persons¹. Nowadays, in the age of globalization when innovative means of transport and telecommunication have increased people’s ‘capabilities and aspirations to migrate’, Western countries (European Union & USA) attempt to reinforce their power over the cross-border movement of people by constructing databanks² equipped with modern technological tools such as: bone scanners, speech-recognition utilities and last but not least biometrics-defined as technologies that measure and analyze human body characteristics, such as fingerprints, eye retinas and irises, voice or facial patterns and hand measurements or DNA for authentication purposes. As our existence is being translated into more inputs and outputs of data to be processed and embed technology everywhere, self-governed, independent human being, capable of mastering his/her own freedoms and rights-as privacy theory presupposes - is on a collision course with the human being subjected to and affected by more and more complex Information & Communication technologies (ICT). This process is to be observed in the framework of the European Union’s area of Freedom Security and Justice where information sharing, including the exchange of more complex and sensitive personal data is a common practice³. Whenever Member States’ authorities take decisions in the realm of migration policy-issuing a passport to its nationals, deciding on the responsibility of a particular member state for an asylum claim or determining whether an individual is legally staying on territory of the European Union-their actions are governed by the European legislation that at the same time provides politicians and governmental bodies with the plethora of technological tools allowing them, for instance, to check personal data including biometric data and exchange relevant information through secured EU networks ←13 | 14→of communication⁴. Personal data are therefore constantly exchanged, not only between Member States and with third countries, but also between EU bodies⁵. On the practical level, this cooperation is carried out by a network of European agencies, bodies and Member States authorities exchanging information between each other as well as with third parties based on EU initiatives, administrative agreements or international treaties⁶. The number of these established throughout the years has recently caused concerns over - on the on hand - interoperability between EU information systems in the area of borders and security - on the other - fundamental rights infringements linked to the right to private life (Article 7 of the EU Charter of Fundamental Rights (the Charter) and the protection of personal data (Article 8 of the Charter). In a state of mass surveillance, personal rights and freedoms are severely limited, as clearly predicted in Orwell’s book „1984”. Furthermore, the actual broader availability of data can in itself have additional implications-positive or negative-on, for instance, the right to an effective remedy (Article 47) or the prohibition of torture and inhuman or degrading treatment or punishment (Article 4), liberty and security of person (Article 6) integrity of the person (Article 3) the right to asylum (Article 18) and prohibition of collective expulsion (Article 19) rights of the child (Article 24) and equality before the law (Article 20)⁷.