In a letter to several EU member states and the Commission, the U.S. government threatens a new condition for visa-free entry. There is confusion in Brussels over a response. Parliament was the last to be informed about the initiative, although it concerns fingerprints and facial images.
Since the 9/11 attacks, the U.S. government and the European Union have entered into several data-sharing agreements. The TFTP treaty, for example, gives U.S. authorities details of global financial transactions through the Belgian company SWIFT. The PNR agreement forces the transfer of passenger data before each flight. Both agreements were controversial among data protectionists and fought over in the EU Parliament.
Now a new, much more far-reaching agreement in the security field is on the agenda. The U.S. Department of Homeland Security is demanding direct access to police biometric databases in the EU. The fingerprints and facial images stored there are intended to facilitate the identification of individuals in the context of U.S. immigration controls.
First voluntary, then mandatory as of 2027
The initiative is known as the Enhanced Border Security Partnership (EBSP). Initially, participation is voluntary. But starting in 2027, it will become mandatory under the U.S. Visa Waiver Program (VWP), which allows visa-free entry into the United States for up to 90 days.
Several times, the government in Washington had tightened the rules in the VWP. Since 2006, travelers have been required to carry biometric passports. This was followed in 2008 by the obligation to pre-register entry in the ESTA travel authorization system.
Finally, bilateral Preventing and Combating Serious Crime Agreements (PCSCs) were required of all VWP participants. Through these, it is mutually possible to request fingerprints and DNA profiles in individual cases.
Commission also received letter from U.S. ambassador
So if European governments refuse to open up their databases under the EBSP initiative, they face being kicked out of the VWP. Several EU member states received a letter to that effect from Washington through U.S. embassies in February, including France, Germany and Switzerland. The exact content is secret; freedom of information requests to the German Interior Ministry and the Chancellor’s Office failed.
At the EU level, the plans for the EBSP are now causing confusion. That’s because the EU Commission has also received a letter from the U.S. ambassador to the EU. In it, the Union is invited to a “technical dialogue” on the implementation of the new rule in the member states.
Further details of the letter remain secret. Disclosure would have a “negative impact on the climate of trust” between the relevant authorities on the EU and U.S. sides, the Commission wrote in response to a request.
No data on U.S. citizens in return
In Brussels, it is disputed whether the Commission is responsible for negotiating such agreements at all. After all, EBSPs would be bilateral agreements between governments. However, the Commission had also negotiated agreements under the VWP in 2008 at the request of the Council in a “two-track approach.”
Despite the legal ambiguity, the French presidency was conspicuously quick to address the push from Washington. Just a month later, the government in Paris drafted a joint response to the U.S. letters. In it, the U.S. authorities are asked to be more specific about the requested opening of biometric databases.
It is unclear, for example, which of the millions of European biometric data are of interest to European police forces and which U.S. systems should be made available to European border authorities in return. The U.S. Department of Homeland Security, for example, maintains the IDENT database, which stores fingerprints and facial images on some 270 million individuals. However, these are exclusively individuals who have entered or attempted to enter the United States. Biometric systems on U.S. citizens do not exist at the federal level.
De facto copy of EU information systems.
Several formations of the EU Council, where member governments meet and exchange ideas, have already addressed the EBSP initiative. Discussions took place, for example, in the Council working groups on JHA information exchange and visas.
It also addressed fears that U.S. access to biometric data in individual member states would allow access to EU databases through the back door.
Admittedly, this access would not be direct. However, EU members are now required to mirror national fingerprints and facial images in European databases as well. If the U.S. Department of Homeland Security had bilateral agreements with all EU states, it would be a de facto copy of EU information systems.
EU Parliament remains inactive
Only after the individual member states and the Commission has the U.S. government also informed the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) about the planned access to biometric data in the EU. MEPs have not taken action yet – as far as is known.
Given the scope of the U.S. initiative, this is surprising. Haste is also called for because the Council is creating facts with its joint response on behalf of the member states and has even been holding talks with the U.S. government since the end of March. Last week, the French presidency raised the EBSP initiative with the Commission at a meeting on the Visa Waiver Program in Washington. Results on this were not made public.
Image: U.S. border authorities.