Brom Και Besters - 2010 - ‘Greedy’ Information Technology the Digitalizatio

8/15/2019 Brom Και Besters - 2010 - ‘Greedy’ Information Technology the Digitalizatio

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European Journal of Migration and Law 12 (2010) 455–470 brill.nl/emil

‘Greedy’ Information Technology:T e Digitalization of the European Migration Policy

Michiel BestersResearcher, Technology Assessment Department, Rathenau Institute,T e Hague, the Netherlands

Doctoral candidate, Political Philosophy, Department of Philosophy, School of Humanities,

Tilburg University, the NetherlandsFrans W.A. Brom

Head of Technology Assessment Department, Rathenau Institute,T e Hague, the NetherlandsProfessor of Ethics of Technology Assessment, Ethics Institute,

Utrecht University,T e Netherlands

Abstract European borders are being transformed into digital borders.T e ambition behind the European infor-mation systems – like the Schengen Information System and Eurodac – is to establish a single Unioninformation system to control the ux of migrants. We show that in this process information technologyis not a neutral tool to reach established goals but that it is ‘greedy’.T is greediness indicates the distort-ing potential of information technology regarding the means-end logic. Our analysis suggests that theEuropean migration policy is stuck in a ‘digital x’, i.e. a technological x focusing on ICT. We identifythree political issues concerning greedy information technology within the context of the Europeanmigration policy. T e rst issue concerns the democratic control on information systems.T e secondissue discusses the weak legal position of immigrants.T e third issue inquires into the eff ectiveness ofinformation systems as a policy instrument.

Keywordsdigital borders; information technology; Schengen information system; illegal immigrants; European

migration policy

Introduction

Just a few decades ago, border control in Europe was a matter of a barrier and apassport. When passing the border, an officer would check your passport andlook you in the eyes with a stern face to nd out if there is anything suspicious.Information technology has transformed this picture completely. Today, informa-

tion systems make the diff

erence: being admitted to the European Union or not. With the introduction of the Schengen Information System in 1995, the rstE d t b i l t d f th f t lli th i ti


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456 M. Besters & F.W.A. Brom/ European Journal of Migration and Law 12 (2010) 455–470

digital borders enabling ‘mass surveillance’.1 T e introduction of informationtechnology has set the stage for what can be called the digitalization of the Euro-pean migration policy. By adding biometric data, these digital borders are eventransformed into ‘biometric borders’.2

T e Schengen Information System has simplied the sharing of informationamong Member States. Having information at one’s ngertips, the efficiency andeff ectiveness of border control has improved. In addition to the Schengen Infor-mation System, a database was implemented to register asylum applications:Eurodac. T is database was equipped with a new feature: ngerprints for thepurpose of identication. With these two information systems in place, the Euro-pean Commission has expressed the aim to set up a single Union informationsystem. In trying to realize this aim, the European Commission is developing newinformation systems and supports the synergy between the existing ones. With-out doubt, the events of 9/11 have accelerated this process of digitalization, but,as defended in an earlier study of the Rathenau Institute3 these developments were initiated already before the terrorist attacks.

T e process of digitalization of the European migration policy displays a greattrust in information technology. And it remains to be seen whether this trust paysoff . Some critics (such as Guild et al.)4 claim that there is an ‘untested belief’ in

security technologies as the ultimate solution for any threat the EU might face. Actually, the European migration policy is turned into a kind of ‘test lab’ fornew technologies:

( . . .) it is important to recognize that many of its [the EU’s] most controversial systems – nger-printing, ID cards, populations databases, “terrorist” proling, travel surveillance and so on – havebeen (and are still being) “tested” on migrants and refugees or otherwise legitimized at the border. Acquiescence to these controls and indiff erence to the suff ering of migrants and refugees at thehands of “Fortress Europe” has paved the way for their use in domestic security scenarios.5

In this article, we will study the separate information systems in view of theambition to establish one big European information system to control the uxof migrants. T is is an essential part of we can call the European ‘migration

1) Baldaccini, A., “Counter-Terrorism and the EU Strategy for Border Security: Framing Suspects withBiometric Documents and Databases”, 2008European Journal of Migration and Law , 10, pp. 31–49at 47.2) L. Amoore, “Biometric borders: Governing mobilities in the war on terror”, 2006Political Geography ,25, pp. 336–351.3) A. Vedder et al., ‘Van privacyparadijs tot controlestaat? Misdaad- en terreurbestrijding in Nederland a

het begin van de 21ste eeuw’ , studie 49, Den Haag: Rathenau Instituut, 2007, 15.4) E. Guild, S. Carrera & A. Eggenschwiler,Informing the Borders Debate , CEPS Background Brieng,Paris: CEPS 2009, 3.


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machine’.6 We will argue that the trust in information technology a ff ects theoutline and development of the European migration policy. We will claim thatinformation technology is ‘greedy’: it elicits a dynamic of its own in which thepolitical ends become to depend heavily on the technical means. As a conse-quence, the European migration policy runs the risk of being stuck in a ‘digitalx’, i.e. a technological x focusing on information technology.

Following our analysis, the digitalization of the European migration policy isdriven by an instrumental view on technology.T is view assumes technology tobe merely an instrument that can be deployed to achieve a political end. We willargue that such an instrumental approach fails to grasp the ‘greediness’ implied byinformation technologies. Subsequently we will discuss three political issues thatarise when assessing the use of information systems for the purpose of bordercontrol. T e rst issue concerns the democratic control on databases.T e secondissue concerns the weak legal position of immigrants. And the third issue dis-cusses the eff ectiveness of information systems.

1. Towards a Single Union Information System

When the Schengen Acquis was signed in 1985 by Belgium, France, Germany,Luxembourg, and the Netherlands, the negotiations started for measures to com-pensate for the abolishment of the internal borders. Nearly two years later, in1987, the idea was proposed to establish an European database: the SchengenInformation System (SIS).7 T is information system was introduced for thepurpose of registering persons and goods that should be refused entry to theSchengen area or that are searched for by one of the Schengen Member States.In those days, information technology was still in its infancy. However, informa-tion technology matured rapidly and caused a ‘digital explosion’.8 Retrospectively,it can be claimed that the establishment of the SIS marks the beginning of a newera for the European migration policy. With the information being available atone’s ngertips, information systems yield the promise of absolute control on theexternal borders.

Since 1995, the SIS is the general means of information exchange betweenauthorities responsible for border control. In the course of the time, thenumber of Schengen Member States has grown. At the very moment when theScandinavian states knocked on the door for admittance to the Schengen zone,

6)

H. Dijstelbloem & A. Meijer (eds.),De migratiemachine. De rol van technologie in het migratiebeleid , Amsterdam: Van Gennep, 2009; H. Dijstelbloem, & A. Meijer (eds.), Migration and the New Technologi-cal Borders of Europe, Palgrave Macmillan (forthcoming, 2010).


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the decision was adopted to develop a new generation of the SIS: SIS II. Forthe mean time, the rst generation SIS was expanded rst into SIS I+ andlater ‘cloned’9 into SISone4all in order to cope with the new Member States. In1999, the Schengen Convention was integrated into the European Union, imply-ing that all EU Member States needed access to the SIS.T is expansion hasturned the SIS into the largest running European information system. Currently,the SIS contains over thirty one million records, including more than one millionrecords of persons.10 Next to the development of the rst generation SIS, anotherlarge scale information system was built: Eurodac. Resulting from the DublinConvention in 1991, this database was proposed for the purpose of registering allasylum applications submitted to EU Member States. Eurodac is a means to allo-cate the responsibility for an asylum application to a Member State enabling theprevention of asylum shopping. It is no longer possible for an asylum seeker toapply in two diff erent EU Member States. Interestingly, Eurodac was equipped with biometric technology to record the ngerprints of asylum seekers in the ageof 14 and older, the so-called Automated Fingerprint Identication System(AFIS). Biometric identication is very promising, because it relies on permanentphysical features of the human body. However, its reliability is not absolute. About ve percent of mankind has no ngerprints or has ngerprints that are

diffi

cult to read with a machine.11

And, according the Dutch Minister of Internal A ff airs,12 the quality of the ngerprints of young children and elderly people areso bad that they can hardly be read by a machine.

In the near future, the use of biometric technology is not restricted to Eurodac.T e second generation of the Schengen Information System is also equipped withtechnology for biometric identication (ngerprints).T e biometric data is storedin a search engine, called the Biometric Matching System (BMS). And there ismore to it. Together with SIS II, an information system has been designed toregister all visa applications of non-EU citizens: the Visa Information System

(VIS).13 T e SIS II and VIS will have the same technical infrastructure, includingthe BMS. T e VIS will be used to store information of visa applicants and thelegal person based within the European Union that supports the visa application.T is is actually a huge amount of information.T e VIS is expected to become

9) House of Lords,Schengen Information System II (SIS II). Report with Evidence , HL paper 49, 2007, 95.10) Council of the European Union, Doc.nr. 6162/10: Schengen information system database statistics dd01/01/2010 , 05-02-2010.11) Official Journal of the European Union,Opinion of the European Data Protection Supervisor on the

Proposal for a Regulation of the European Parliament and of the Council concerning the Visa InformSystem (VIS) and the exchange of data between Member States on short stay-visas (COM(2004)835 ,C 181, 2005, pp. 13–29.


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Europe’s largest database. To indicate the seize of the VIS: in 2008 alone abouttwenty million visa requests have been registered.14

With the SIS, Eurodac, and VIS, the European Union is developing somemajor instruments to control the migration ow.T ey cover various categories ofmigrants: persons that should be refused entry or that are searched for by one ofthe EU Member States (SIS), asylum seekers (Eurodac), and travellers with a visarequirement (VIS). According to the European Council and Commission, theseinformation systems yet fail to detect another important category of migrants: theso-called ‘overstayers’. An overstayer is a person whose legal residence has expiredand thus resides illegally in the EU. In order to detect overstayers, a new informa-tion system has been developed: the Entry/Exit System (EES).T e Entry/ExitSystem is used for the registration of entry and exit data of persons who will resideor have resided within the EU. Importantly, the EES only registers the fact thatsomebody has entered or left the EU and not where the person can be localizedduring the period of residence. In September 2009, a one week data collectionexercise took place to test the added value of the EES.15 About 12 million persons were registered. About 75% of the registrations concerned EU citizens and only12% of these registrations concerned the initial target group, that is, third coun-try nationals with a visa requirement.

2. T e Quest for Visibility T e information systems are developed to control all migrants entering and leav-ing the EU. T e aim of the information systems is to increase the visibility of themigration ow. T is visibility facilitates both the identication of risk categories(for example: many Chinese students entering the EU with a visa becomeillegal residents) as well as recognition of migration patterns (for example: theNetherlands attract many Somalian immigrants). Due to the process of digitaliza-tion, the European migration policy has been advanced into a kind of risk man-agement. T e traditional notion of border control has been transformed intomigration ow management that is, a ‘regime through which migration owacross borders are regulated through the institutionalisation of a series of “risklters” serving to identify, isolate and deect themala de from the bona de migrant’.16 According to this line of thought, the part of the migration owthat is ‘invisible’ and therefore unidentiable presents a big threat simply becauseit is inestimable.

14) European Commission,T e setting up of an Agency for the operational management of large-scale ITsystems proposed by the Commission. MEMO/09/290, 2009.


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T e advanced use of digital information enables the proling of risk groupsthat should be excluded from the EU’s territory.17 Proling, as dened byHildebrandt,18 is ‘the process of “discovering” correlations between data in data-bases that can be used to identify and represent a human or nonhuman subject(individual or group) and/or the application of proles (sets of correlated data) toindividuate and represent a subject or to identify a subject as a member of a groupor category’.T e assumption is that the more information, the better the prol-ing of risk groups. It is assumed that absolute visibility of the migration owimplies complete control.T is results in a very restrictive strategy for the enforce-ment of border control by means of ne-grained sieving and sorting mechanisms.19 Critics argue in this respect that Europe has been transformed into an impreg-nable fortress, or perhaps better, a ‘cyber-fortress’.20

When analyzing the European migration policy, it appears that the targetgroup is not limited to terrorists and criminals. Currently, the European migra-tion policy is predominantly geared towards tracking down ‘illegal immigrants’. An immigrant is illegal when s/he resides within the EU without an administra-tive status or s/he has no proper documents and seeks unauthorized access to theEU. Examples of illegal immigrants are a Chinese student at a Dutch university whose visa has expired or a North African boat immigrant who attempts to reach

the Spanish coast.T

e invention of category of ‘illegal immigrants’ is an attemptto identify and isolate a ux of immigrants that is invisible for the EU. Critics,such as Bigo et al.21 have argued that the category of illegal immigrants is a veryinaccurate one, implying a needless criminalization of immigrants. Actually, asBaldwin-Edwards & Kraler22 have shown, the use of the term ‘illegal immigrant’is Eurocentric: an immigrant is dened as illegal if his entry to or residence onEurope’s territory is not authorized by EU Member States.

In order to cope with the invisible inux of illegal immigrants, the EU advancesdiff erent technologies next to the information systems.T e EU has for instance

established the FRONTEX agency that coordinates the surveillance of the exter-nal borders and has a collection of brute force technologies (like vessels, airplanes,

17) Amoore, supra note 3, 339.18) M. Hildebrandt, “Dening Proling: A New Type of Knowledge?”, in: M. Hildebrandt & S. Gurtwirth(eds.),Proling the European Citizen. Cross-Disciplinary Perspectives , Springer & Business Media B.V. 2008,pp. 17–45, 19.19) D. Broeders, “Mobiliteit en surveillance: een migratiemachine in de maak”, in H. Dijstelbloem & A. Meijer (eds.), De migratiemachine. De rol van technologie in het migratiebeleid , Amsterdam: VanGennep 2009, pp. 35–59, 40–43.20)

E. Guild, S. Carrera & F. Geyer,T e Commission’s New Border Package. Does it take us one step closea ‘cyber-fortress Europe’? , CEPS Policy brief, Paris: CEPS 2008.21) D. Bigo, D., S. Carrera & E. Guild, 2009T e CHALLENGE Project: Final Policy Recommendations on


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and helicopters) at its disposal to pursue its task. Furthermore, the EU is con-structing a surveillance system, called EUROSUR, to control the irregular itiner-aries used by immigrants to access Europe.23

Europe’s eff ort to make the migration ow visible for the purpose of tracingillegal immigrants has been disputed by many. Critics have for instance arguedthat the excessive trust in technology results in a ‘quasi-military approach’ to thecontrol of Europe’s external borders.24 Moreover, the quest for visibility and con-trol seems to produce its own counter eff ect. Instead of putting a stop to illegalimmigrants, the strict identication regime applied by the EU leaves some groupsof immigrants no other option than pursuing even more dangerous routes,causing fatalities among immigrants.25 T is phenomenon is known as the ‘water-bed-eff ect’ or ‘squeezed balloon-eff ect’. Well-known are the North African boatimmigrants trying to reach the shores of Spain. Instead of crossing the Strait ofGibraltar, these immigrants take a detour to reach the Canary Islands.

3. Re-shuffl ing Means and EndsT e increasing number of information systems that have been or are being estab-lished to control the migration ow reveals the ambition to set up one integratedUnion information system.26 Due to legal and technical limitations, this ambi-tion cannot be fully realized.T erefore, the European Commission opts for thesecond best solution: realizing synergy by promoting the interoperability betweenthe current and future information system, thus anticipating a ‘network of Euro-pean databases’.27 T e argument for harmonizing and integrating the informationsystems is economic in nature.T e synergy and interoperability between thesystems promises less costs, increased efficiency, and increased eff ectiveness.It is interesting that the European Commission conceives interoperability as asheer technical concept.28 According to the European Commission, it concernsthe mere technological possibility to exchange data and to enable the sharing

23) J. Jeandesboz, An Analysis of the Commission Communications on Future Development of FRONTEand the Creation of a European Border Surveillance System (EUROSUR), Brieng paper for the EuropeanParliament, 2008; Commission of the European Communities,Communication from the Commission tothe European Parliament, the Council, the European Economic and Social Committee and the Committeethe: Examining the creation of a European Border Surveillance System (EUROSUR), COM (2008) 68 nal,13-2-2008.24) T. Spijkerboer, T ., “T e Human Costs of Border Control”, 2007European Journal of Migration andLaw , 9, pp. 127–139, at 127.25)

Ibid .; T. Spijkerboer, “Lijken spoelen aan op je kust Europa”,NRC Next , 11-11-2009.26) European Parliament,Report with a proposal for a European Parliament recommendation to the Councilon the second-generation Schengen information system (SIS II), nr. A5-0398/2003, 07-11-2003, 9.


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of information.T is vision on interoperability gives expression to a strong instru-mental account of technology.T e European Commission considers technologymerely as a means to accomplish a particular goal.

In the report NeoConOpticon.T e EU Security-Industrial Complex , Hayes29 critically analyses the ambiguous concept of interoperability. According to him,the drive for interoperability in the EU Justice and Home A ff airs policy started in2002. Exploring the potential synergy between the existing (SIS, Eurodac) andfuture (SIS II, VIS, EES) information systems, a working group outlined twopossible options: either

(1) merge all information systems in a single ‘Union Information System’ or(2) provide interoperability by harmonizing data formats and access rules

between information systems.

Hayes notes that the rst option appears both unlawful and technically impossi-ble. Consequently, the EU has pursued the second option: support the exchangeof data and the sharing of information in the EU. On the basis of his analysis,Hayes argues that the harmonization of access to data to provide interoperabilityamounts to the same thing as merging the separate databases together into

one big European information system. As a matter of fact, both options imply‘a breaking down of the rewalls between government datasets, the creation ofmultipurpose surveillance systems, and an erosion of the laws and principlesof data protection’.30 Interoperability is thus not merely a technical issue. It intrin-sically a ff ects the complete political and legal organization supporting the infor-mation systems.

T e instrumental view on technology displayed by the European Commissionis too narrow to account for the dynamic that is unleashed when political goalsare implemented by information technology. Information technology is more

than a means to accomplish a well-dened goal. Information technology is‘greedy’;31, 32 it has the capability to (re-)shape its predened goal. Informationtechnologies bring about distorting eff ects. Consequently, the trust in informa-tion technology to enforce Europe’s external borders has a drawback. Informationtechnology elicits a dynamic in which the political ends are becoming more andmore dependent on the technological means. Actually, the possibilities to makethe migration ow visible are strongly dependent on the possibilities off ered bythe technological means.T e development of the second generation of SIS can beused to illustrate this relation between technological means and political ends.

29) Hayes,supranote 5, 70–71.


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T e rst political decision to start developing the second generation of the SISdates from 1996, at the time when the Scandinavian countries were admitted tothe Schengen Convention. When the decision was officially adopted in 2001 todevelop SIS II, the members states started negotiating the functions that the newinformation system should include.T e negotiations, however, progressed veryslowly. In order to avoid a substantial delay of the development of SIS II, it was proposed to build a exible technological architecture comprising all poten-tial functions in anticipation of the outcome of the negotiations between theMember States.33 Whenever the Member States agree on the introduction of anew function and have arranged the legal framework, the function can be updatedinstantly. T is is denoted by the notion of ‘latent development’,34 implying thatthe technical pre-conditions for all new functions are available in SIS from thestart and that these functions can be activated once the political and legal arrange-ments are in place.

T e ‘extendable technical infrastructure’35 is very problematic concerning therelation between technological means and political ends.T e idea of a latentdevelopment actually reshuffles this relation. As a matter of fact, the fundamentalpolitical discussion between Member States on the functions of SIS II is eff ec-tively already settled on the technical level. In this sense, the political decision-

making is conditioned by technology. Indeed, why would an information systembe developed with a wide range of functions if only a few of these functions willbe used in the end? With the technical architecture in place, it is only a matter oftime before the new functions will be deployed. In the case of SIS II, the meansthus justify the end, as the European Data Protection Supervisor has noted.

At rst sight, SIS II is designed as a means to a particular end; it is a means toregister persons and objects for the purpose of border control.T is instrumentalview, however, fails to grasp the dynamic particular to information technology, itsgreediness. As a matter of fact, the latent development implied by SIS II distorts

the means-end logic. In case of SIS II, the possibilities implied by the technicalinfrastructure have the potential to direct the political decision-making and rede-ne the goal of SIS II.T e technological possibilities can thus be advanced tore-shape the purpose of information systems.

33)

Commission of the European Communities,Communication to the Council and the European Parlia-ment on the Development of the Schengen Information System II, and possible synergies with a future Visa Imation System(VIS), COM (2003) 771 nal, 11 December 2003.


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4. Political Issues

So far, our assessment of the European migration policy focused on the particulardynamic displayed by greedy information technology.T e development of themigration policy gives the impression that EU is dependent on informationtechnology. What is technological feasible appears as what is politically needed tocontrol the migration ow.T e greediness of the European information systemsgives rise to three political issues.T e rst issue relates to the question as to howdemocratic control can be exercised on the information systems.T e second issueconcerns the legal position of immigrants who are registered in the Europeaninformation systems.T e third issue touches upon the eff ectiveness of informa-

tion systems.

4.1. Democratic Control

In view of the EU’s ambition to advance the interoperability between the existingand new information systems, the exercise of democratic control should be safe-guarded. Towards this end, transparency about the functioning of informationsystems is indispensible. What information is processed and stored? What is thequality of this data? Which authorities have access to this information? And what

results are achieved with it? Currently, the information systems often lack trans-parency about the information that is contained by the systems as well as theauthorities that have access to this information.T is has consequences for theexercise democratic control on information systems.T e SIS and Eurodacare two interesting examples in this respect.

Since the implementation of the SIS in 1995, the statistics have not been pub-lished regularly, the statistics that have been published were not complete andcritics have strong doubts about the reliability of the statistics.36 To a great extent,the intransparency of the SIS is caused by its intergovernmental nature. Each

Member State manages its own national system.T e information in the nationalsystems is copied to the central system. Accordingly, the central system is themeans to share the information from the national system with other MemberStates. In practice, the key role of the national systems is major obstacle for thefunctioning of SIS. Inspections by national data protection authorities have dem-onstrated that there are diff erences between Member States regarding the applica-tion of standards for the registration of persons.37 At the time when the decision was adopted for the development of the second generation of the SIS, the Euro-pean Parliament made use of that exquisite occasion to put the issue of demo-

36) Cf. Brouwer, supra note 7, 65–70.


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cratic control on the agenda. T e European Parliament insisted to settle thestrategic management of SIS II as soon as possible. In view of other large-scaleinformation systems and the synergy between them, the European Parliamentargued that the democratic control should be settled fundamentally by establish-ing a European agency.38 Recently, the European Commission published a pro-posal for such a regulatory agency.39 T e agency will be responsible for theoperational management and the publication of statistics. Importantly, the agency will also be responsible for data security and data integrity as well as the compli-ance with data protection rules. In the long run, the regulatory agency is envi-sioned to become a centre of expertise for IT systems in the ‘Area of Freedom,Security, and Justice’.

T e current developments of Eurodac illustrate the other important issuesrelated to democratic control: who has access to the information system and whatresults are achieved with it? Recently, a proposal of the European Commissionhas been published to use the information on asylum applications more effi-ciently by granting law enforcement authorities access.40 Initially, only a limitednumber of authorities had access to this information system.T ese authoritieshave a responsibility that is directly linked to the practice of the asylum policy.Granting wider access to Eurodac stems from the Hague Programme which dic-

tates with the ‘principle of availability’ that the information exchange betweenlaw enforcement authorities should be improved. Data protection authoritieshave criticized the proposal of the European Commission to widen the access toEurodac. T ey argue that it is an unsubstantiated proposal: the legitimacy andnecessity of the wider access has not been demonstrated.41

T e proposal to widen the access to Eurodac is a clear example of functioncreep. Function creep is the way in which information, that has been collected forone limited purpose, is gradually allowed to be used for other purposes. Actually,the proposal yields the potential redenition of Eurodac’s political purpose.

Whereas Eurodac is initially deployed for the control of asylum seekers, it is nowenvisioned to facilitate Europe’s combat against illegal immigration and terror-ism. T e incremental development of Eurodac thus bears the possibility to trans-form this system into a diff erent one. T is has far-reaching consequences for thefunctioning of Eurodac.

38) European Parliament,supranote 26.39)

Commission of the European Communities,Communication from the Commission: Legislative packageestablishing an Agency for the operational management of large-scale IT systems in the area of freedom, sand justice, COM (2009) 292 nal, 24-6-2009.


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4.2. Legal Position of Immigrants T

e second political issue implied by the greediness of the European informationsystems is the legal position of individuals who are registered in the informationsystems. For the EU’s interest, migrants need to subject themselves to a setof information systems. In this respect, the interest of the EU outweighs inthis respect the interest of migrants.T e decision adopted in 1999 to developEurodac exemplies this. Eurodac is a measure to harmonize the asylum policiesbetween the EU Member States.T e interest of the EU Member States for har-monization by means of Eurodac is self-evident: the responsibility for an asylumapplication can easily be allocated to one of the Member States. But what are the

consequences of Eurodac for the immigrant? In the current situation the interestof immigrants is not strengthened by Eurodac. It is, rather, once again the EUthat strengthens its position.T e immigrants will only benet from the harmoni-zation if the grounds on which an asylum application is approved or rejected arealso harmonized between Member States.

T e EU is currently negotiating a common asylum policy to align the criteri-ons for asylum for approval or rejection of asylum applications. At this momentin time, however, each EU Member State takes a decision on asylum applicationsbased on its national interest.T e grounds for approval or rejection of asylumapplications between EU Member States therefore appear to be arbitrarily. Con-sequently, immigrants are stimulated to direct their asylum application to EUMember States that decides upon grounds that will maximize the success forapproval.

T e fact that the European immigration policy is inclined to strengthen theinterest of the EU Member States against the interest of immigrants a ff ects the way in which the legal position of immigrants is safeguarded by the informationsystems. Take once again the SIS. As mentioned above, there are problems con-cerning the interpretation of the criterions to register a person. It is well knownthat in the past Germany has registered asylum seekers who have exhausted alllegal procedures. After this, the FrenchConseil d’Etathas decided in a lawsuit thatthese alerts of third country nationals are not line with the Schengen Conventionand therefore ‘unlawful’.42 So in eff ect, it is up to the immigrants themselvesto challenge wrong registrations and correct the Member States’ registrationpractice.

T e wrongful registration of immigrants in the SIS even becomes more press-ing when looking at the possibilities of immigrants to contest their registration

and execute their rights to do so. In an investigation by the Dutch Ombudsmaninto the registration of third country nationals in the SIS, the bureaucracy isll d i hi h i ig t t d h th i h t t t th i


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registration and exercise their rights.43 First of all, the investigation of the DutchOmbudsman reveals a kind of ‘automated’ decision making by theImmigratie enNaturalisatiedienst (IND), the responsible authority in the Netherlands for theregistration of third country nationals. Actually, the IND does not make a diff er-ent consideration for immigrants whose legal residence has expired for three daysor eight years. Secondly, the Dutch Ombudsman reveals three lacunas whenimmigrants are registered:

(1) immigrants are not properly informed about the fact that they are regis-tered,

(2) immigrants are not properly informed what this registration implies (i.e.no entry to the EU for several years), and

(3) immigrants are not properly informed how they can dispute their registra-tion in the SIS.

Interestingly, immigrants that are registered in the SIS can factually only exercisetheir rights in the Member State that is responsible for issuing the alert. Tackingstock of the investigation of the Dutch Ombudsman, it will be interesting toexamine how the other Member States have institutionalized the decision making

process for the registration of third country nationals. As a matter of fact, thispoints out once more the asymmetry between the EU Member States and theimmigrants. A SIS-alert on a person by a particular Member State is obeyed by allother Member States. However, immigrants who wish to exercise their rights can-not appeal to an EU-authority. T ey will have to address their complaints to theauthorities of a particular Member State, i.e. the authorities of the Member Statethat are responsible for issuing the alert. Consequently, as Baldaccini has noted,‘there is little in terms of a safety net for foreigners to fall back on should theassumptions as to safety of the use of their data and accuracy and efficiency of the

technology turn out to be misplaced’.44

4.3. E ff ectiveness of Information Systems T e third political issue that we wish to address relating to the greediness ofinformation technology concerns the eff ectiveness of information systems.T eeff ectiveness of an information system can be examined by measuring the resultsthat it has produced against its purpose. Two conditions are required to examinethe eff ectiveness of an information system: reliable data about the functioning

of the system and a clear denition of the system’s purpose. Hence, transparency,in the sense as we have discussed it above, is the pre-condition for measuring


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the eff ectiveness of information systems.T e critical function of measuring theeff ectiveness with respect to the European migration policy can be illustratedconveniently by discussing the Entry/Exit System (EES) in comparison withthe US-VISIT program.

T e EES is developed to detect ‘overstayers’, third country nationals whoselegal residence in the EU has expired.T e EES works similar like a hotel manager who checks everyday which guests are expected to be in the hotel and whichguests should have left the hotel.45 T e EES is complementary to the VIS.T eVIS registers the persons who have applied for a visum. A visum authorizes thesepersons to legally reside within the EU for a limited period of time. However, theVIS itself does not detect when visa travellers expire their legal residence. Whenconsidering the added value of the EES, it is important to examine its (presumed)eff ectiveness. What results is it likely to produce?T is question becomes evenmore interesting when considering the costs and difficulties for the developmentof large scale it systems like SIS II.T e costs of SIS II are over€ 90 million for thecentral system46 and over € 20 million for each national system (Member states’budget; this amount is based on Dutch gures).47

For assessing the eff ectiveness of the EES, it is interesting to compare it with its American equal: the US-VISIT program. When it became known in the USA

that several terrorist responsible for 9/11 were overstayers, the government starteddeveloping the US-VISIT (Visitor and Immigrant Status Indicator Technology)program in 2004 to enable registration of exit data of immigrants. Hobbing &Koslowski48 have listed some results of the US VISIT program. Between 2004 and2008 about 113 million immigrants have been registered in the information sys-tem. In this period, more than 1800 individuals have been stopped entering theUSA with the help of US-VISIT. Taking into consideration that through the year2009 the US VISIT-program has cost about $ 2 billion, each suspect that wasstopped at the border cost over $ 1 million.T e reason why the results of the US-

VISIT program so far are somewhat disappointing is due to the fact that thesystem does not function properly.49 T e process that is supported by the US-VISIT system consists of four parts:

(1) ‘pre-entry-phase: registration in the system at US consulate in immigrant’s

45) P. Hobbing & R. Koslowski,T e tools called to support the ‘delivery’ of freedom, security and justiccomparison of border security systems in the EU and in the US , Brieng paper for the European Parliament,2009, 29.46) Commission of the European Communities, Commission Sta ff Working Document: Report on the nan-

cial and contractual aspects of developing the second generation Schengen Information System (SIS II, SEC(2010) 436 nal, 12 April 2010.47) Dutch Minister of Internal Aff airs, Letter to the Dutch Parliament about the state of affairs SIS II, T e


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country of origin, (2) ‘entry’-phase inspection of immigrant when arriving atthe US border, (3) ‘status’-phase: check on immigrant’s legality of residence, and(4) ‘exit’-phase: recording the immigrant’s departure.T e weakness of the systemconcerns the ‘exit’-phase. Actually, the airlines and visa travellers themselves(by means of self-service terminals at ports of entry) were made responsiblefor recording the departure in the system. None of the US authorities tookcontrol of the ‘exit’-phase.50 T is has resulted in a system with huge amountof information on the entry of immigrants, but little information on the depar-ture of these immigrants. As a consequence, the ‘exit’-phase in the US-VISITprogram seriously a ff ects its eff ectiveness. If the exit data is missing, all immi-grants will be identied as overstayers.

T is is also a lesson to bear in mind for the EES: the eff ectiveness of an entry-exit system can only be ensured if an entry record can be matched against an exitrecord. According to Hobbing & Koslowski,51 it is currently impossible to realizethe match between an entry and an exit record in all EU Member States. Besides,it is the question whether the EES is targeting the right individuals. As we notedabove, during the one week data collection exercise that was arranged to examinethe added value of the EES only 12% of the registered persons concerned theinitial target group, i.e. third country nationals with a visa requirement. As Peers

notices, ‘it isassumed that the system would not apply to EU citizens, since theCommission’s communication does not address that issue expressly and it ishighly doubtful whether including EU citizens within the scope of the system would be compatible with EU free movement law’.52 In order to ensure the eff ec-tiveness of the EES, the target group should rst be determined purposively. Afterall, this has important consequences for the outline of data to be collected and thedenition of the system’s purpose.

Conclusion We started this article by taking up the question whether European migrationpolicy is stuck in digital x. By analyzing the process of digitalization, we haveelaborated on the ambition of the EU to set up one big information system.T is ambition is realized by fostering synergy between the existing and futureinformation systems: the SIS, Eurodac, VIS, and EES. We claimed that the EUdisplays an instrumental account of technology, risking to make the denition ofpolitical goals more and more dependent on the possibilities off ered by informa-

tion technologies.T

e idea behind massively registering migrants in informationsystems is to make the migration ow visible and identify risk categories.T is


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quest for visibility, however, has a ipside. A part of the migration cannot berendered visible, resulting in a residue category with an inestimable risk: illegalimmigrants.

Having analyzed the particular dynamic displayed by greedy information tech-nology within the context of the European migration policy, we have identiedthree political issues.T e rst issue concerns the conditions for exercising demo-cratic control on the information systems, in particular transparency about thedata contained by the systems and the authorities that have access to the systems.T e second issue relates to the legal position of immigrants. We claimed thatthere is an asymmetry between the EU and the immigrants.T e strong interest ofthe EU implies a weak legal position of immigrants, resulting in bureaucraticallycomplex and diff use procedures for immigrants to exercise their rights.T ethird issue touches upon the eff ectiveness of information systems. By comparingthe Entry/Exit System with the US-VISIT program, we have identied the con-ditions for an information systems to function smoothly and produce the expectedresults. Still, if these conditions are met, the question can be raised whether the“price” is right for producing these results.

T e EU’s trust in information technology for the purpose of border control ismotivated by its promises: improved efficiency and warranted eff ectiveness. Surely,

a great deal of information exchange is just impossible without information sys-tems. However, blind trust makes the European migration policy susceptible tothe greediness particular to information technology. In that case, the Europeanmigration policy runs the risk of conning itself to the possibilities off ered byinformation technology and to be stuck in a digital x.T e EU may be attractedby the ‘unprecedented’ possibilities for border control presented by informationtechnology, but the EU should not consider it as a standard solution.


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Brom Και Besters - 2010 - ‘Greedy’ Information Technology the Digitalizatio

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