PRESS RELEASE: Human rights complaint on US access to European fingerprint and DNA databases filed Press release of 22 March 2012

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22.03.2012 - A German citizen has filed a complaint to the European Court of Human Rights concerning an intergovernmental agreement which allows an undefined number of US authorities (e.g. law enforcement, border authorities, intelligence agencies) to match fingerprints and DNA with German police databases in real-time. The Court has confirmed reception of the complaint (application no. 5095/12).

A 2008 "Agreement on enhancing cooperation in preventing and combating serious crime"[1] for the first time allows the US to match, in real-time, any person's fingerprints with the German Federal Crime Agency's database in the absence of any suspicion. More than 3 mio. people's fingerprints are currently stored in the German fingerprint database. The intergovernmental agreement came into effect last year. The matching system is not yet operational as implementation is still being discussed.

After having participated in protests against neo-fascists, the complainant has had his fingerprints and DNA taken and registered by German police. The complainant fears that when travelling to the US a positive fingerprint match may have negative consequences, for example being detained, being added to no-fly lists, having his assets frozen or being subjected to surveillance (e.g. by using SWIFT data or ECHELON telecommunications surveillance) without ever being notified. The agreement does not guarantee judicial redress in case of erroneous or illegal conduct by US authorities. The complaint alleges that the agreement violates the fundamental right to privacy.[2]

The German Senate (Bundesrat) ratified the agreement in 2009 despite finding as follows:

"In its present form the agreement does not satisfy the conditions under which the processing of personal data is in line with fundamental rights."

Hamburg's Senator of Justice criticised in 2009:

"In its present form the agreement opens the door to wanton incrimination and uncontrolled data spread. The obsessive collection of information pertaining to health, sexual life or trade union membership does not prevent any terrorist offences. This agreement does not produce extra security but extra insecurity".

Yet the agreement came into force unchanged after the social democrats came to power in Hamburg. The complainant fears that the matching system could be implemented at any time.[2]

The German Federal Constitutional Court declined last year to rule on the matter for formal reasons. Because a postal service had mistakenly delivered the complaint to the wrong court, the legal period for bringing complaint to the Constitutional Court had expired.

Mostly unnoticed by the public, the US since 2008 have negotiated similar data sharing agreements with 18 European states (called "preventing and combating serious crime" or "PCSC" agreements), often threatening to remove a country from the US visa waiver program if they did not grant access to police databases.[3]

The EU Commission is currently negotiating a data protection agreement with the US which would, however, not remove the PCSC agreements' fundamental deficiencies. The absence of judicial redress in the US, the absence of an independent US data protection authority and the generally inadequate level of protection of human rights in the US would persist. For example the US routinely performs extrajudicial executions, uses courts of exception ("military commissions") and imprisons people without charge for an indefinite period (e.g. in Guantánamo and Bagram).

"I warn Europe not to agree to any systematic exchange of personal data with the US before the European Court on Human Rights has ruled on the pending complaint", declares jurist and civil liberties activist Patrick Breyer. "For as long as the US refuse to ratify the American Convention on Human Rights and to drop its reservations to the International Covenant on Civil and Political Rights, any routine co-operation with them results in a real risk of human rights violations and is prohibited under the European Convention on Human Rights. Existing PCSC agreements must be terminated immediately."

[1] Full text of the US-German data sharing agreement

[2] Full text of the human rights complaint (in German)

[3] "Leaked cables: U.S. bullying Europe into transatlatic biometrics matching"

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