USA seeks bilateral deals for access to European “criminal, terrorist, and identity records”
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Country/Region
14 November 2023
The USA’s proposed Enhanced Border Security Partnerships would entail “systematic and continuous” exchanges of sensitive personal data between participating states. The European Commission has indicated that its working group with the USA has stopped operating, and that plans are instead being negotiated bilaterally between member states and the USA.
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Image: NASA Goddard Space Flight Center, CC BY 2.0
Transatlantic data pond
In September, MEPs from the Greens group asked the European Commission a number of questions on its discussions with the USA on a proposed Enhanced Border Security Partnership, which would see biometric databases on both sides of the Atlantic interlinked for border security checks and data-gathering purposes.
Under the plan (pdf), authorities would be able to “compare the fingerprints of travelers seeking entry or immigration status… against their appropriate criminal, terrorist, and identity records,” and receive substantial amounts of personal data in case a comparison reveals a match.
The USA’s plan is connected to the Visa Waiver Program, under which citizens of participating states do not have to apply for a visa to enter the country, and are instead obliged to acquire an electronic travel authorisation. States participating in the VWP must allow US searches of their “criminal fingerprint databases,” in return for reciprocal access.
However, the US now deems this “inadequate to improving routine traveler screening now required by law, policy, and the current threat environment,” under requirements imposed through a Trump-era Executive Order that was a follow-up to the infamous “Muslim ban” decree.
US authorities now want access to “appropriate criminal, terrorist, and identity records,” and Visa Waiver Program states are the first targets for the plan. Earlier this year, the Swedish Presidency of the Council of the EU noted a “lack of full reciprocity of the data to be exchanged,” indicating that the US wanted to receive more than it was willing to give. The USA also approached the European Commission and the two sides set up a joint working group.
With their questions, the MEPs noted that the plan “has raised many concerns about fundamental rights and data protection,” calling “the lack of transparency regarding the negotiations regrettable.” The Commission’s answers suggest that EU member states remain involved in discussions with the USA, but that the EU-US working group is no longer active.
Proof of concept
In March, Statewatch published a document that said EU and US officials had discussed “the intention to have a first set of data transferred” as part of a “proof of concept” for the data-sharing plan.
The Green MEPs asked the Commission what “the legal basis underpinning the ‘proof of concept’” was, “in particular as regards any plans to exchange personal or other data?”
The Commission informed them that a proof of concept was under consideration, “as a basis for a future discussion on how to enhance information exchange between the EU and the U.S. to improve security at borders,” but that it “will not involve any exchange of data.”
Visa policy
The MEPs also asked about the connections between the EBSP and EU visa policy, following the Commission previously saying that it “would disassociate information exchange from issues linked to visa policy.”
While the EU has a common policy on short-stay Schengen visas, the issuance of long-stay visas remains under the control of the member states, and it is member states – not the EU – that participate in the Visa Waiver Program.
In response to the MEPs’ questions, the Commission said that it would “no longer link the Enhanced Border Security Partnership (EBSP) to the U.S. Visa Waiver Program as part of the bilateral exchanges between Member States and the U.S.”
Working group
Where that leaves a potential EU-USA agreement remains unclear. The Commission’s response indicates that the working group that was discussing the plan is no longer active:
“The EU-U.S. EBSP Working Group enabled discussions related to information exchange with the objective of strengthening U.S. and EU border security. The Commission was represented at Director and/or Head of Unit level. The Working Group convened twice and on following dates: (6 September 2022 and 27 September 2022). No further meetings are currently scheduled.”
The US plan requires direct access to registers of sensitive personal data on hundreds of millions of people as part of a larger project to extend its surveillance apparatus, and critics have warned that it “threatens to violate human and privacy rights at an exponential rate, particularly in Black, brown, and immigrant communities already facing discriminatory policing and surveillance.”
Chris Jones, Statewatch Director, commented:
“Whether or not the EU and USA are still discussing an Enhanced Border Security Partnership, there is little doubt that the US would be delighted to have access to the EU’s expanding array of biometric databases. But it may also be able to find a way in through bilateral agreements with the EU’s member states. Citizens, parliamentarians and journalists should be making inquiries into what their governments are discussing with the USA.”
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Further reading
EU and USA plough ahead with secret discussions on biometric data exchange scheme
The EU and USA are discussing a proposed “Enhanced Border Security Partnership” which would involve “continuous and systematic” transfers of biometric data in both directions, but the Commission has refused to release documents that would provide further information to the public.
USA border plan requires “continuous and systematic” transfers of biometric data
Last year, it was revealed that the USA planned to launch Enhanced Border Security Partnerships (EBSPs) with other states around the world, seemingly targeting the EU, UK and Israel first. These would involve “continuous and systematic” transfers of biometric data to the USA for the purposes of immigration and asylum vetting, says a recent Council of the EU document obtained by Statewatch.
USA offers foreign states access to 1.1 billion biometric “encounters” in return for reciprocal database access
The US Department of Homeland Security (DHS) is touting ‘Enhanced Border Security Agreements’, offering access to its vast biometric databanks in exchange for other states reciprocating. Reports suggest the UK is already participating, although there is no official confirmation of this. In the EU the proposals have caused a furore amongst privacy-minded MEPs. A document produced by the DHS, obtained by Statewatch, shows what the USA is offering foreign states.
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