Public Consultation on the Smart Borders Package

As a member of the Fundamental Rights Platform (FRA)  Aktion Freiheit statt Angst has given its opinion to a survey to the "Smart Border Packet" of the EU. We present our opinion to this "technical solution" of the EU in the following.

 Public Consultation on the Smart Borders Package

1. About your organisation

You are responding this questionnaire as:

x An organisation (non-governmental, civil society organisation, academia,
research, social partner, interest group, consultancy, think-tank...)

Contributions received from this survey will be published on the European
Commission's website (for further information, please consult the privacy
statement). Do you agree your contribution being published?

x Yes, your contribution may be published under your name (or the name of the
entity you represent)

Name of your organisation: Aktion Freiheit statt Angst e.V.
Address of your organisation: Rochstr. 3, D-10178 Berlin, Germany
Email address of your organisation: kontakt@aktion-fsa.de

Is your organisation registered in the Transparency Register of the European
Commission and European Parliament?

x Yes

If yes, what is your registration number? 17019643006-45

2. The use of biometric identifiers

The 2013 legislative proposal on the Entry/Exit System requires visa-exempt non-EU
citizens entering the Schengen area for a short stay to give 10 fingerprints at the border crossing if they are not registered in the Entry/Exit System — either because
it is their first visit or because the data retention period has expired since their last
visit.
Travellers who hold a visa will have given fingerprints when applying for it, so would
not need to have their fingerprints taken again at border crossings.
The 2013 legislative proposal on the Registered Traveller Programme requires
non-EU citizens applying for the programme to give four fingerprints. They would
give these when submitting an application under the programme.
Both proposals exempt children under the age of 12 from the requirement to give
their fingerprints.
In both cases, biometric identifiers (fingerprints) would be used to improve on
identity and verification checks, e.g. to verify that the person crossing the border is
the person to whom the passport was issued. The Commission is currently
examining the feasibility of using other types of biometric identifiers (in particular
photo/'facial image') for this purpose.
What kind of biometric identifiers would you prefer to be used?

x No biometrics at all, only alphanumerical data (for example, your name, surname, and travel document number)
_ Fingerprints only
_ A combination of facial image and a limited number of fingerprints
_ Facial image only

Why? Please explain: (maximum 500 characters)

- A tight spot for all others, all have to undergo this procedure sometime soon.
- Insecurity with central data retention; (e.g. hactivism on US-administrations https://www.aktion-freiheitstattangst.org/de/articles/5176-20150929-fingerabdruecke-von-cia-und-nsa-agenten-im-angebot.htm and https://www.aktion-freiheitstattangst.org/de/articles/5176-20150929-fingerabdruecke-von-cia-und-nsa-agenten-im-angebot.htm )
- Datas are only necessary for identification; no reason for data retention; there is a basic right on data minimization.

Do you think that the use of biometric identifiers could jeopardise or improve the
reliability of border checks?

x Jeopardise
_ Improve
_ No opinion / Not sure

Please explain: (maximum 500 characters)

- This is a deterioration of the existing state,because more datas circulate and by that attends a basically bigger exposure.
- false positives : There are arising groundless suspicions and the accused have to prove their innocence , which is often not possible or very difficult (reversion to resumption of innocence ).

3. Process to accelerate border crossing for non-EU citizens

The 2013 proposal for the Registered Traveller Programme proposes setting up a
programme to enable pre-vetted non-EU citizens to benefit from facilitations at
 borders. This will make it easier and quicker for these pre-vetted frequent travellers
to cross borders. The Commission is analysing potential simplifications to this
approach.
To what extent do you consider that there is a need for a process to accelerate
border crossings by non-EU citizens at the Schengen area’s external borders?

_ To a great extent
_ To some extent
_ To a small extent
x Not at all
_ I do not know

The 2013 proposal for the Registered Traveller Programme provides for a faster
border crossing process for those travellers having submitted a specific application.
Applicants for the Registered Traveller Programme would be subject to some specific
checks when submitting their application. Participation in the programme would
require the payment of a fee. For their subsequent journeys, accepted Registered
Travellers would be exempt from part of the checks applicable at borders to non-EU
citizens. At major external border crossing points equipped with automated border
control gates, border checks would be performed using these infrastructures. Where
no automated border control gates would be available, Registered Travellers would
be able to use the lanes reserved for citizens of EU countries and Iceland,
Liechtenstein, Norway and Switzerland.
Do you consider that this specific process to accelerate border crossings should be
available for non-EU citizens?

_ Yes
x No

Why? Please explain: (maximum 500 characters)

There is no improvement,because we can ́t expect any speedup if Lanes becomes splitted; the very opposite will occur.
- No equal treatment and by that violation of a fundamental right
- By the introduction later there will be generated pressure on other people to adjust to the process.

Another faster border crossing process could be envisaged for those travellers
entering the Schengen area for a short stay and whose passport data and biometric
identifiers had already been registered in:
- the Visa Information System for travellers holding a short-stay visa;
- the Entry/Exit System for visa-exempt travellers whose data has been registered
during a previous journey, if the retention period has not yet expired.
These travellers would be able to benefit from a faster process without needing to
submit any application. This process would be available at those border crossing
points equipped with self-service kiosks. Some elements of the border checks
(passport control, biometric verification, answering questions...) could be performed
using self-service kiosks. The decision to authorise or refuse entry would be taken by
a border guard who may also need to talk to the traveller for additional verifications.
Do you consider that the process to accelerate border crossings described above
should be available for the two categories of travellers listed?

_ Yes
x No

Why? Please explain:

We don ́t think that this technical system makes any sense and we don ́t expect any improvement of the clearing at the borders.

If self-service kiosks are implemented, do you envisage any difficulties related to
their use by travellers?

x Yes
_ No
_ I don't know

If you answered yes to the previous question, please explain the kind of difficulties
that could be faced and the types of traveller affected by such difficulties (maximum
1500 characters).

- All problems of biometric detection can occur ( identification mistakes, changes by aging or work ( fingerprints are nonreadable ))
- linguistic barriers of the instructions for use,
- disabled persons and seniors are discriminated and scared off,
- questionable hygiene with systems, you have to touch,
- operation mistakes of technique, - in USA implementations became interrupted because of technical mistakes,respectively because of no-recognition,
- bare scanners should become „advanced“ by metal detectors, because their results are not valid ( https://www.aktion-freiheitstattangst.org/de/
articles/5131-20150828-nacktscanner-taugen-nichts.htm )
- longer waiting queues
- equal treatment of all people is not ensured.

4. Data

The 2013 Entry/Exit System proposal sets a limit to how long data can be kept after
its collection at the entry and exit of the Schengen area’s external borders:
1) A maximum retention period of 181 days after exit (91 days if the traveller has
been absent from the Schengen area for 90 days). This retention period enables
enforcement of the rule authorising non-EU citizens to stay in the Schengen area
during 90 days within any period of 180 days.
2) A data retention period of five years for a person who has overstayed (i.e.
remains in the Schengen area beyond the authorised period of stay). This data
retention period aims to support the identification of the person and the return to
his/her country of origin.
The Commission is evaluating whether these retention periods should be adapted in
its new proposal.

Concerning the data retention period for the Entry/Exit System for non-overstayers,
would you be in favour of:

_ A maximum data retention period of 181 days starting from the exit date. This
period is sufficient to calculate the duration of authorised short stays in the
Schengen area.
_ A longer data retention period, to speed up border controls as a traveller
returning to the Schengen area during the data retention period would not need to re-enrol under the Entry-Exit System, since his/her personal data is still stored in the system and can be reused.
x Other

Please explain:

- none of both possibilities, because this would endanger travelers.
- This is a deterioration of the existing state,because more datas circulate and by that attends a basically bigger exposure.
- false positives : there are arising groundless suspicions and the accused have to prove their innocence , which is often not possible or very difficult (reversion to resumption of innocence).

Concerning the data retention period for the Entry/Exit System for people who
overstay, would you be in favour of:

_ A data retention of five years following the last day of the authorised stay
_ A data retention longer than five years
x A data retention shorter than five years

Why? Please explain:

- no data retention at all
- stamps in passports are sufficiant

5. Law enforcement access to the Entry/Exit System data

The 2013 Entry/Exit System proposal provides that the option for law enforcement
authorities to access data will be evaluated two years after the system enters into
operation.
For its forthcoming revised proposal, the Commission is analysing whether law
enforcement authorities should have access to the system, and if so, under which
conditions. This analysis will address the necessity, appropriateness, and
proportionality of this option and be accompanied by a fundamental rights impact
assessment.
Would you favour granting law enforcement authorities access to the data stored in
the Entry/Exit System for the purpose of preventing, detecting or investigating
terrorist offences or other serious criminal offences? This access would be granted
under strict legal prerequisites in full compliance with fundamental rights.

_ Yes
x No
_ Not yet. The issue should be evaluated two years after the implementation of the Entry/Exit System.
_ No opinion / Not sure

Please explain why: (You may tick more than one box)

x There is no need for such access
x Other

Please explain:

- false positives, everybody is suspected
- presumption of innocence becomes defeated
innocents become potential victims
- suspected are those too, who are not in the system yet.Thereby the principle of equal treatment is violated.
- The data subject request demand of earmarking of datas are violated, if the datas are used for (arbitrary )police research.
- The solution of these problems should be workable by traditional police trade.
- A violation of earmarking by use of the datas is arising.

If law enforcement authorities had access to the Entry/Exit System data, which of
the following conditions should be implemented to mitigate the impact on
fundamental rights and in particular on data protection? (You may tick more than
one box)

_ Access should be limited to the prevention, detection or investigation of terrorist
offences or other serious criminal offences.
_ There should be reasonable grounds to consider that the specific envisaged
consultation of the Entry/Exit System data will substantially contribute to the
prevention, detection or investigation of any of the terrorist or serious criminal
offences in question.
_ Searches should only be possible in specific cases under clearly defined
circumstances. The proposal should exclude searches on a systematic basis.
_ The data should be accessible for law enforcement purposes for a predefined
limited period of time.
_ A court or an independent administrative body should verify in each case if the
required conditions for consulting the Entry/Exit System for law enforcement
purposes are fulfilled.
_ Access to the Entry/Exit System should only be possible if prior searches in more
restricted databases (e.g. Member States’ criminal databases) do not provide
sufficient results.
_ No opinion / Not sure
x Other

Please explain:

- Basically we regard such a procedure as too fatal.
- The reasons for a possible longer stay are typically unknown. Therefore
this should not be a reason for data retention.

6. Stamping

Currently, stamping the passport is the only method of indicating the dates and
locations of entry and exit. The stamps are used by border guards and immigration
authorities to calculate the duration of the stay of non-EU citizens and to verify
compliance with the rules on short stay (authorised stay of 90 days within any
period of 180 days). This calculation method is time-consuming and difficult,
particularly for frequent travellers. In addition, maintaining the quality and security
of stamps requires both resources and efforts, as they can be subject to
counterfeiting and forgery.
The 2013 proposals provide for the abolishment of the stamping of passports of
non-EU citizens crossing the external borders of the Schengen area. The
Commission would like to gather views on the consequences of such abolition.
If stamps on passports were discontinued, would non-EU citizens need access to the
information they currently provide (date and location of entry into/exit from the
Schengen area)?

_ Yes, to make sure during the stay in the Schengen area that the planned return date complies with the authorised stay in the Schengen area (90 days within 180 days).
_ Yes, to plan any future trip(s) to the Schengen area and to ensure compliance with rules on the authorised period for a short stay (90 days within 180 days)
_ Yes, to prove absences from the country of residence
_ No
_ No opinion / Not sure
x Other

Please explain:

- By these measures the control or exposure of terrorists is not guaranteed.
- Normally a terrorist is spotted less easyly by an automatic system, because he can adjust to the characteristcs of it.
- The system leads to a threat of human rights.

7. Comments/other questions

Do you expect any other possible impacts of the Entry/Exit System or the Registered
Traveller Programme on asylum seekers that should be taken into account?

- Risk of false positives ( reversion of presumption of innocence )
- Stigmatization
- Suspicion of terrorism because of delayed departure is ridiculous.
- The principle of equal treatment is endangered.
- Basically and regardless of any changes of the performing border procedures at borders stamps in the travel documents have to be maintained for all travellers.
If such a system would be implemented, it should not be online in Internet, but in public authorities to allow there a proof of identity.
- Our request : Everybody can delete outdated datas himself.

Do you expect any other possible impacts on those who may need to issue
invitations, such as EU citizens, companies, organisations or associations located in
the EU?

- Citizens and people in organisations, may be stored as „potential helper of terrorists“ (gefährliche Vieleinlader) as it was proposed in the "visa waiver" database.
- Companies should not be involved in the process of procurement of visa.

If you have any other comments regarding the Smart Borders package or its
impacts, please give further details (maximum 1500 characters).

We decline the package of measures „smart border“.
We can ́t see any benefit for travellers/speedup of the trip. Obvious is only the profit of large enterprises of the security industry.

According to researches by statewatch, beside others,
1) the whole process of genesis and implementation is intensely to critizise and shows strong antidemocratic tendencies, because the EU Parliament as well as the civil society became rarely informed and integrated.
2) We ascertain a disguising of the costs :FP7-development costs concerning research projects of smart border as well as FP8-costs of the added follow-up costs, which are not contained.
3) The risk of staff reduction and surplas loads of the employees by the planned conflation of the functional areas of „migration officers“,custom officers,private and public security agents,civil servants of constitutional protections for fundamental rights and freedoms and police officers in favor of the upgrading of IT-Systems.
4) Mixture of functional areas of military and police (FRONTEX).
5) Defeating and endangering of special fundamental rights (among others Informational self-determination,appropriation ) by connection of existing databases and the introduction of new mega-databases.
6) Redardless which system would become implemented, it should stay ensured, that the personnel datas belong to the travellers. He has to have still access to his datas. The fundamental right to informational self-determination is demanding that already.

All articles about

• eBorder,
• Arbeitnehmerdatenschutz,
• Verbraucherdatenschutz,
• Datenschutz,
• Datensicherheit,
• Datenpannen,
• Biometrie,
• Fingerabdruck,
• Elektronischer Personalausweis,
• Elektronischer Pass,
• RFID Chips,
• Asyl,
• Flucht,
• Folter,
• Abschiebung,
• Migration,
• Frontex,
• Fluggastdatenbank,
• EuroDAC,
• Europol,
• Schengen,
• Visa Waiver,
• Verfolgung,

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