Fortress Europe? How Automated Facial Recognition Technology Undermines Human Rights

Table of Content

Introduction

Methodological section

Background information: Facial Recognition Technology in the European Border Manageme

Theoretical section
Legitimacy in the EU
Concept of Human Rights (protection) of the EU and the European identity

Empirical analysis
Input legitimacy: Border governance in the Schengen border regime
Output legitimacy: human rights violation and ineffective output policies
Throughput legitimacy: Accountability within the process of privatization ofborder management

Conclusion

References

ABSTRACT

Since the introduction ofthe Schengen Agreement in 1985, the task ofborder security has shiftedfrom national borders to the European external borders. Although this agreement has led to greater European integration and to a certain degree to a common European identity, opinions are divided on how to deal with humans outside ofthe Schengen borders. With the increasing migrationflows towards Europe since the Syrian Conflict in 20U and the ensuing EUpolicies, the EU has increasingly become aprotected fortress, which recognizes migrants as a threat. At the same time, the EUpresents itselfas aprotector of human rights.

The aim ofthispaper is to investigate to what, extent the EU's strategyfor securing its borders aligns with theprimacy ofhuman rights and whal.impacl.European migrationpolicy measures have on the EU’s legitimacy. In order to answer this question, a systematic literature review was carried out based on Schmidt's (2013) classification oflegitimacy into input, output, and throughputand taking into account the concept ofhuman rights ofthe EU.Input legitimacy w^as examined in the context ofthe border governance ofthe Schengen border regime, output legitimacy waspudged in the context ofthe EUROSURpolicies, especially the use ofAFRT at borders and the refugee distribution scheme ofthe Dublin Convention. Throughput legitimacy w^as analyzed taking into account the criterion of accountability within theprivatizalion ofthe border management. The examination ofthese aspects has shown that the EUpolicy on migration is highly contradictory and deficient in all areas oflegitimacy. There are no uniform ways ofacting, nation-state interests remain dominant,policies conflict with human rights, there is no clarity about who is accountablefor certain measures.

On the basis ofthe insights gained.five recommendationsfor action have been drawn upfor the EU Commission, which should contribute to coping with this crisis.

1. Introduction

In 1985 the member states of the European Union (EU) and other European countries as Switzerland signed the Schengen agreement to create a common border management and guarantee visa freedom between the different states. To protect and safeguard the Schengen borders, the European Border and Coast Guard Agency (Frontex) was created in 2004 and is tasked to manage the external borders of the Schengen area. Since 1985 national borders are no longer restricted by border controls regarding trade and the movement of goods, services and people. This ‘intergovernmental arrangement outside the EU [...] has become one of the pillars of the EU's architecture’ (Zaiotti, 2018, p. 99) and has enforced European integration and contributed to the development of an European identity (Zaiotti, 2018). But with the emergence of the Arab Spring and the following so-called refugee crisis in 2015, the EU’s border security was challenged and transferred from a migration-centered approach into a detention approach (Vaughan-Williams, 2015). The so-called ‘securitization ofthe migrants’ (Vaughan-Williams, 2015, p. 7) as an approach ofborder management came with the introduction of Automated Facial Recognition Technology (AFRT) to enhance smart European borders and keep migrants, which are recognized as a threat by the EU, outside of the EU (Zaiotti, 2018). The transformation of the aim of the EU’s border management can be examined by the opening of the Turkish border towards Greece in 2020. Instead of dealing with this crisis and embracing the European value ofhumanization, the EU increased the forces and financial aid ofFrontex to stop migrants from crossing borders into the EU (ZEIT ONLINE, 2020). Moreover, surveillance mechanisms and the securitization of the European borders are used to secure the threat of terrorism which occurs in Europe since 2015. But the problem that most terrorists involved in attacks in the EU are European bom, is not solved through recognizing migrants as a threat to Europe. Rather the re-consultation of the Dublin Convention¹ and changing the existing asylum system in the EU which burdens the Southern European countries most, would be a humanitarian strategy which is aligned with the values of the EU. Because of the remaining problem of an inhuman approach of the EU’s border management by using surveillance mechanisms and stopping migrants from entering instead ofhelping, this research paper wants to examine ‘To what extent can the border management strategy ofthe EU align with itsprinciples regarding human rights while ensuring its legitimacy?’

The so-called refugee crisis led to a critical and negative perception towards refugees and people with different cultural backgrounds in the EU member states (Ulrich, 2018). Many people and politicians instrumentalized refugees to promote their racist and antisemitic point of view (Ulrich, 2018). After the uprising of many populist parties in some European countries, the EU signed an agreement with Turkey in 2016to close the Turkish borders in order to keep the explosive issues outside the EU and Schengen borders (The Guardian, 2016). While some people were pleased with this agreement, many people were criticizing this inhuman way of dealing with the crisis. With the terrorist attacks in France in 2015 and Brussel in 2016, the threat of an unstable inner security in the EU was rising. Therefore, many people associated the refugees with the rise of the threat of terrorism in the EU. Because of the increasing negative perception of refugees and support for populist and racial parties and movements like PEGIDA in some countries (Ulrich, 2018), the EU tried to deescalate the situation and presented tools to prevent terrorism to solve the crisis. New technologies like AFRT have been introduced as a tool at national and external borders which conflict with various articles of the EU Charter on Fundamental Human Rights (the Charter)² and the General Data Protection Regulation (GDPR)³ (FRA, 2017). The Charter ensures and protects human rights in the EU, however with the inclusion of AFRT at borders, these rights are getting violated (European Agency for Fundamental Rights (FRA), 2017). The new challenge of the EU’s border management is how technological tools can ensure the values of the EU like the protection of data security and privacy of every human. The aim of this study is to examine the influence of surveillance systems used in the European Border Surveillance System (EUROSUR) on the protection ofhuman rights as one of the core values of the EU and guaranteed by the Charter. Thereby, this study is investigating a possible legitimacy crisis of the EU triggered by the migration crisis and seeks to formulate proposals for the Commision to solve it.

2. Methodological section

The aim of this paper is to examine the impact of the so-called refugee crisis on the legitimacy of the EU’s border management and the included Schengen regime to derive well-based conclusions and recommendations for the Commission.

First, a historical background on the development of surveillance mechanisms as tools ofborder security and the use of AFRT in the EU’s border management is given. In the theoretical section, the concept oflegitimacy based on Schmidt (2013) as well as the concept of the primacy ofhuman rights, which is considered to be the basis of the EU’s border management and security narrative will be examined.

With the means of a Systematic Literature Review we are going to entail the harms that the employment of the EUROSUR and the associated modernization of the EU’s border management imposes on the legitimacy ofthe EU. This examination is divided into three sections: input, output and throughput legitimacy. Input legitimacy will be examined in the context of the border governance of the Schengen border regime, output legitimacy will bejudged in the context of the EUROSUR policies, especially the use of AFRT at borders and the refugee distribution scheme of the Dublin Convention. Last but not least, throughput legitimacy will be analyzed taking into account the criterion of accountability within the privatization of the border management.

Finally, in the conclusive part, we will try to formulate concrete proposals aimed at solving this European legitimacy crisis, which we assume the EU is soaked in deeper given their current behavior and policies within the so-called refugee crisis.

3. Background information: Facial Recognition Technology in the European Border Management

The Schengen border regime has become one of the pillars of the EU’s architecture and ‘has been hailed as a success story ofEuropean integration’ (Zaiotti, 2018, p. 99). However, the establishment of an integrated border management is not yet accomplished and will remain a controversial issue since member states do not want to lose sovereignty over such a sensitive policy area (Zaiotti, 2018). The Europeanization of the border policy stagnated with the external shock of the so-called refugee crisis and the ‘increased migratory pressure on Europe’s borders’ (Zaiotti, 2018, p. 99). As Zaiotti (2018) argues this has led ‘to the further strengthening of existing external border controls’ (p. 99) and the ‘increasing [...] efficacy of control measures’ (p.102). Moreover, ‘[t]here has been a rapid expansion in the type and volume of information collected for security purposes’ (Mann & Smith, 2017,p.l21).Asthe authors argue, this was the starting point of ‘globalized surveillance’ (Mann & Smith, 2017, p.121), with which the EU’s border management has changed and technological devices have been introduced to develop ‘smart European borders’ (Zaiotti, 2018). Therefore, in 2013, EUROSUR came into force which allows the member states to carry out border surveillance (Zaiotti, 2018). One technology which is outstanding and raises the most concerns about violating human rights is the AFRT which ‘allows the automatic identification of an individual by matching two or more faces from digital images’ (FRA, 2019, p. 2). Meaning, that human’s facial features are ‘abstracted into data flows enabling identification and connection with [...] big data’ (Mann & Smith, 2017, p. 123). Big Data serves as the collection and aggregation of large datasets which can be analyzed in order to find quested associations (Mann & Smith, 2017). Such technology stands out of other biometric technologies because it does not require the active participation of the person to be recognized but operates with an matching algorithm (Bowyer, 2004). This process of technologization of the EU’s border management also includes an ongoing process of privatization since the implementation ofborder security related policies is often done by third actors such as the European agency Frontex (Binder et al., 2018).

4. Theoretical section

4.1. Legitimacy in the EU

All political systems depend on legitimacy in order to secure their lasting rule. Since democracies have been historically developed in the nation-state context, the EU has become an experiment in governance beyond the state. For decades there have been debates about the quality of the EU's legitimacy, the exact causes and consequences of its democratic or legitimacy deficit and the possibilities for strengthening the democracy of the EU (Abels, 2019). Schmidt (2013) defines legitimacy as ‘the extent to which input politics, throughput processes and output policies are acceptable to and accepted by the citizenry, such that citizens believe that these are morally authoritative and they therefore voluntary comply with government acts even when these go against their own interest and desires’ (pp. 9-10).

The concept of output and input legitimacy as applied to the EU have their origins in the work of Scharpf, who originally divided democratic legitimacy into two concepts: input legitimacy and output legitimacy (Schmidt, 2013). Schmidt (2013) however argues that there is a third criterion for evaluation which she describes as throughput legitimacy.

According to Scharpf (as cited in Schmidt, 2013), input-oriented legitimacy emphasizes the rule of the people. Thus, political decisions are legitimate if they reflect the will of the citizens. The input is judged in terms of the EU's responsiveness to the concerns of the people. Further, it ‘refers to the participatory quality of the process leading to laws and rules as ensured by the majoritarian institutions of electoral representation’ (Schmidt 2013, p. 4). An essential point of input legitimacy is the constant expressing of demands, institutionally and deliberately through the means of representative politics (Schmidt, 2013).

In contrast, political output represents the results of political decision-making processes. According to Scharpf (as cited in Schmidt, 2013), the output-oriented legitimacy is the ability of the EU institutions to govern effectively for the people (Schmidt, 2013). It requires policies to work effectively while still preserving the values and identities of the citizens (Schmidt, 2013). Output legitimacy specifically concerns the problem-solving quality of the laws and rules and has a range of institutional mechanisms to ensure it (Schmidt, 2013).

According to Schmidt (2013), another dimension oflegitimacy is the rational organization ofthe throughput. This term refers to the practices that occur in the ‘black box’ (Schmidt, 2013, p. 5) of governance, the sphere between input politics and output policy. Here, the focus is on the concrete quality of the decision-making processes in the political system ‘judged in terms of efficacy, accountability, [...] transparency [as well as the] inclusiveness [...] with the people’ (Schmidt, 2013, p. 2) and thus entails the question ofhow decisions are prepared and actually taken. Do arguments prevail? Is a balance of interests sought in negotiations? Are threats and coercion dominant? (Abels, 2019, p. 6)

4.2. Concept of Human Rights (protection) of the EU and the European identity

Schmidt sees identity as a pillar of legitimacy by stating that ‘these two processes are often interlinked [in the EU], as each may have an impact on the other in the building (or undermining) of political identity or legitimacy’ (Schmidt, 2013, p. 18) whereas identity refers to shared values, principles and goals are creating a certain ‘we-feeling’ (Schmidt, 2013, p. 18). There is a common sense in the literature that there is an absence of a purely European identity defined by a ‘sense ofbeing European’ (Schmidt, 2013, p. 25). Accordingly, the EU understands an European identity as ‘complementary to national [...] identities, providing citizens with an additional set of rights’ (Lucarelli, Cerutti & Schmidt, 2011,p.31). Still, since the EU is ‘a global actor doing international relations through multilateralism, humanitarian aid and peacekeeping’ (Schmidt, 2013,p. 24) one can argue that an European identity also entails a cosmopolitan identity which is mostly defined by the humanitarian aspect ofbeing a ‘citizen of the world’ (Beck, 2002, p. 39). The EU embodies this aspect by presenting itself as a human rights protector (cf. Lucarelli, Cerutti & Schmidt, 2011) and a ‘border-free, rights-basedpost-national union’ (Schmidt, 2013, p. 24). Accordingly, member states of the EU have been among the first to ratify human rights treaties with the European Convention on Human Rights (ECHR) in 1950 as one of the first successful projects of a communitized Europe and followed by the EU Charter of Fundamental Rights. The Charter ensures fundamental rights for EU citizens while applying to all EU institutions and member states which have to implement EU law in their domestic law (FRA, n.d.; European Commission, n.d.). The ECHR and the Charter were installed to ensure human rights to every human being without discrimination of their nationality, ethnicity or gender. With the rise of Al technologies, there is an advancing need for law enforcement concerning the protection of rights relating to data security and further privacy rights. The GDPR entails the legal protection of such rights for natural persons and regulates the processing of personal data (Art.l(l)). Given the possibility of identification of the data subject, facial images fall into the category of sensitive data which is addressed by Article 9 of the GDPR by providing enhanced protection and additional safeguards (Barbulescu, 2017).

Migration governance has been high on the European agenda in the last ten years, mostly accelerated by the Syrian conflict in early 2011. The Commission’s direct policy response to the increased ‘irregular’ migration (Vaughan-Williams, 2015) was the Global Approach to Migration and Mobility (GAMM) launched in December 2011 (Commission, 2011) which serves as the overarching framework for the EU’s border security and migration management. Following the dramatic events in the Mediterranean Sea near the island of Lampedusa, the Commission emphasized the ‘well-being of each individual migrant’ (Commission, 2011,p.6) and presents GAMM as a ‘migrant-centered’ (Commission, 2011,p. 6) approach to border security and migration management. Further, it emphasizes the guarantee of democratic principles and human rights for all migrants as human beings with the same fundamental rights as EU citizens. Thus, the GAMM is considered to be the humanitarian approach to border security (Vaughan-Williams, 2015).

5. Empirical analysis

5.1. Input legitimacy: Border governance in the Schengen border regime

In order to examine a potential legitimacy crisis, it is necessary to analyze the governance of the EU behind the border management. The focus will be on the policy-making process and the actors involved within the Schengen border regime.

Since the start of the millennium and even more since the outbreak of the Syrian conflict in2011, the Schengen regime as one of the strongest pillars of the EU, has been increasingly integrated. However, it still relies on intergovernmental agreements within the Council and thus is subject to strong national concerns (Zaiotti, 2018; Vaughan-Williams, 2015). Such tension between the national and post-national dimension has been and is still challenging the entire European integration project (Zaiotti, 2018). Heightened by the current increase in migratory pressure at the EU borders due to the Syrian conflict, such tension is reflected in the fragmented nature of the institutional architecture regarding the border management (Zaiotti, 2018; Vaughan-Williams, 2015). Meaning, that relevant competences are still under national control and national actors, like the government executives in the Council, play a key role in this policy field (Zaiotti, 2018).

This challenges the institutional input legitimacy as Schmidt (2013) argues, because member states remain ultimately powerful within such a policy area and dominate the decision-making process.

Therefore, an illustrating case can be found in the failed refugee distribution scheme of the Dublin Convention, that the Commission has tried to impose upon member states, but which they have ‘either vocally opposed it or dragged their feet in its implementation’ (Zaiotti, 2018, p. 102). As a consequence of the current Dublin convention mechanism, peripheral states with EU external borders become frontline states that can no longer cope with the influx of refugees while respecting human rights. The situation in the refugee camp Moria (Greece) and on Lampedusa (Italy) reflects this presumption. However, given the veto constellation within the Council, the input of the so-called frontline countries, mostly of the European South, asking for a more effective distribution scheme is overruled (Hofbauer, 2018). According to Nedergaard (2018), it can be argued that northern countries such as Germany which was accused of acting from a position of supremacy during the migration crisis, has forced its openness on other EU countries.

Further, there is a common sense in the literature that the EU’s institutional input legitimacy suffers mostly from a weak European Parliament (EP) which is paradoxically the only institution directly legitimated by the people (Schmidt, 2013). When it comes to migration issues, one can argue that the absence of a common European identity challenges constructive input by the people since there is no so-called European cosmopolitan society (Beck, 2002)⁴.

Within the EU’s border governance, the EP seems to play only a little, if any role within the decision-making process of the Schengen border regime as Zaiotti (2018) argues that decisions are being ‘taken in stealth and with only limited democratic input’ (p. 102). Relying on Scharpf (1999) and Easton (1965), the policy making process of the EU’s border governance can be described as failing in terms of input-oriented legitimacy because 1) there is only little, if any participation by the people that would lead to policies being ensured by the ‘majoritarian institutions of electoral representation’ (Scharpf, 1999 as cited in Schmidt, 2013, p. 4) and 2) the political system of the Schengen regime does not represent the citizens’ demands but rather national concerns over sovereignty and security (Easton, 1965 as cited in Schmidt, 2013, p. 4; Zaiotti, 2018).

[...]

¹ Originally it was an international treaty between many European states, but was replaced by European law, the Dublin-II-Regulation in 2003 and by the Dublin III Regulation in 2013 (EU 2013). It lays down the criteria and procedures for determining which member state is responsible for an application for international protection filed in the EU. In principle, the state where the asylum seeker enters the EU for the first time is obliged to carry out the asylum procedure. However, there is a certain test sequence with criteria (e.g. family unity, compliance with the EU Charter of Fundamental Rights) which can suspend the first principle (Art.7-15 Regulation No. 604/2013).

² The Charter came into force with the ratification ofthe Lisbon Treaty in 2009 (European Union, 2012).

³ The GDPR isjust one ofthe EU’s law instruments on data protection. Of further importance are the Law Enforcement Directive (EU) 2016/680, the Data Protection Regulation for EU institutions, bodies and agencies (EU) 2018/1725 and the Directive on privacy and electronic communications 2009/136/EC. Given the narrow scope of this paper, the focus will lay on the GDPR.

⁴ Given the narrow scope of this paper this issue will not be further examined here, but will be revisited in terms of the recommendations.