Visa-free entry to the United States will be tied to a new requirement. Officials there want to be allowed to conduct automated searches for fingerprints and facial images in national databases of EU states. In Brussels, questions now abound about the EU’s jurisdiction.
At least five governments worldwide have agreed to give the U.S. Department of Homeland Security access to their national biometric police databases. This is to become a new provision so that citizens of the countries concerned can continue to enter the USA without a visa. Most recently, Great Britain has agreed to such an Enhanced Border Security Partnership (EBSP); this was already known about Israel.
In addition, three EU countries are said to have already concluded a bilateral agreement with the government in Washington, MEPs in the Committee on Civil Liberties, Justice and Home Affairs (LIBE) learned last Wednesday in a meeting with the U.S. ambassador to the EU. However, they remained unnamed.
Tighter U.S. border controls
With the newly introduced EBSP, the U.S. Department of Homeland Security intends to tighten its border controls. All countries participating in the Visa Waiver Program (VWP) will be affected. It allows their nationals to travel to the U.S. for business or tourism purposes for up to 90 days without a visa. Currently, 40 countries are listed in the VWP, and Israel is missing there.
The participation in the new biometrics program will become mandatory starting in 2027. In 2006, the government in Washington had already mandated that biometric passports be used in the VWP. In 2008, U.S. authorities introduced an additional system for pre-announcing border crossings.
With the exception of some Eastern European countries, numerous EU members received a request to participate in the EBSP from their U.S. embassies in February. The request calls for access to databases of criminals, suspected or convicted terrorists, and asylum seekers. Initially, this will involve fingerprints and, at a later date, facial images.
Citizens registration data also under discussion
The demanded access by US authorities is particularly extensive. When a person crosses their border, an automated query is first made in the participating European countries to determine whether the person is listed in their police or migration-related databases.
In the event of a match, the U.S. officials are then to be allowed to retrieve the biometric data themselves using the pull procedure. Access to data from national citizens’ registers is also under discussion.
Subsequently, it will be checked whether the biometric data match the person encountered at the border. In addition to travelers, asylum seekers are also to be subjected to the procedure.
Council working group on data protection not involved
There is now a heated debate in Brussels about what role the EU Commission and the Council, which brings together the 27 member states, should play in the EBSP. While these are each bilateral agreements, there is no doubt that the EU-US visa regime as a whole is affected.
For this reason, the French Presidency had fast-tracked to respond to the U.S. government on behalf of all EU members. Following a letter to the U.S. ambassador to the EU, France held direct talks on the matter in a “technical meeting” at the end of March.
The results were discussed in two Council working groups, “Visa” and “Exchange of Information.” The “Data Protection” group, which is also affected, is not yet involved at this time.
Action for failure to act against the Commission
Under the VWP program, the Commission already has an explicit mandate to press the United States for equal treatment for visa-free travel. However, progress on this has been slow, with Bulgaria, Romania and Cyprus still not benefiting from the VWP.
That is why the European Parliament filed a lawsuit for inaction against the Commission last year for lack of reciprocity in visa policy.
According to this logic, therefore, the Commission should also be responsible for negotiations on the EBSP. This is the position taken by some high-ranking members of the Commission. On June 14, the presidency and the Commission held their first direct discussions on the issue at their biannual meeting with the Department of Homeland Security in Washington. A week later, the issue was also on the agenda of the meeting of EU and U.S. Justice and Interior Ministers.
No opinion from the Council’s Legal Service
Even if these are bilateral agreements between individual EU states and the government in Washington, European data protection law is affected. These are, for example, the General Data Protection Regulation and the framework agreement for the exchange of police information with the United States. In addition, the case law of the European Court of Justice on EU-US data exchange must be observed.
This is all the more serious because access is to be automated and only checked by a human at the final border control. This could violate the principle of proportionality.
Normally, the Council’s Legal Service should have issued an opinion on the requested U.S. access long ago, but this has not happened yet. However, the Council has asked the Commission to examine the outstanding issues. It will then consider whether to give the Commission a mandate to negotiate on the EBSP.
Criticism from MEPs
Meanwhile, the U.S. authorities have offered to clarify details in a working group involving the member states and the Commission. The question of reciprocity could also be fleshed out there. The U.S. government offered to give EU states access to its International Biometric Information Sharing (IBIS) program, which contains some 270 million individuals. In addition to third-country nationals, these include U.S. citizens:in who have been convicted of serious crimes.
It was only after the reports at netzpolitik.org that the EU Parliament addressed the EBSP. MEPs on the Justice and Home Affairs Committee strongly condemned the initiative.
Liberal Sophie in ‘t Veld criticized the scheme as “blackmail.” Left-wing MEP Cornelia Ernst considers it a blatant violation of the principle of proportionality and speaks of “data imperialism.” Pirate Patrick Breyer expresses similar views, demanding that the EU Commission and also the German government reject the US authorities’ request in its entirety.
Image: Border crossing with automated passport readers in the US. (US CBP).