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European Journal of Migration and Law 12 (2010) 455470

brill.nl/emil

Greedy Information Technology:


The Digitalization of the European Migration Policy
Michiel Besters

Researcher, Technology Assessment Department, Rathenau Institute, The Hague, the Netherlands
Doctoral candidate, Political Philosophy, Department of Philosophy, School of Humanities,
Tilburg University, the Netherlands

Frans W.A. Brom

Head of Technology Assessment Department, Rathenau Institute, The Hague, the Netherlands
Professor of Ethics of Technology Assessment, Ethics Institute,
Utrecht University, The Netherlands

Abstract
European borders are being transformed into digital borders. The ambition behind the European information systems like the Schengen Information System and Eurodac is to establish a single Union
information system to control the flux of migrants. We show that in this process information technology
is not a neutral tool to reach established goals but that it is greedy. This greediness indicates the distorting potential of information technology regarding the means-end logic. Our analysis suggests that the
European migration policy is stuck in a digital fix, i.e. a technological fix focusing on ICT. We identify
three political issues concerning greedy information technology within the context of the European
migration policy. The first issue concerns the democratic control on information systems. The second
issue discusses the weak legal position of immigrants. The third issue inquires into the eectiveness of
information systems as a policy instrument.
Keywords
digital 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 a
passport. When passing the border, an ocer would check your passport and
look you in the eyes with a stern face to find out if there is anything suspicious.
Information technology has transformed this picture completely. Today, information systems make the dierence: being admitted to the European Union or not.
With the introduction of the Schengen Information System in 1995, the first
European database was implemented for the purpose of controlling the migration
flow. That particular event marks the transformation of European borders into

Koninklijke Brill NV, Leiden, 2010

DOI: 10.1163/157181610X535782

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digital borders enabling mass surveillance.1 The introduction of information


technology has set the stage for what can be called the digitalization of the European migration policy. By adding biometric data, these digital borders are even
transformed into biometric borders.2
The Schengen Information System has simplified the sharing of information
among Member States. Having information at ones fingertips, the eciency and
eectiveness of border control has improved. In addition to the Schengen Information System, a database was implemented to register asylum applications:
Eurodac. This database was equipped with a new feature: fingerprints for the
purpose of identification. With these two information systems in place, the European Commission has expressed the aim to set up a single Union information
system. In trying to realize this aim, the European Commission is developing new
information systems and supports the synergy between the existing ones. Without 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.
The process of digitalization of the European migration policy displays a great
trust in information technology. And it remains to be seen whether this trust pays
o. 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 for
new technologies:
( . . .) it is important to recognize that many of its [the EUs] most controversial systems fingerprinting, ID cards, populations databases, terrorist profiling, travel surveillance and so on have
been (and are still being) tested on migrants and refugees or otherwise legitimized at the border.
Acquiescence to these controls and indierence to the suering of migrants and refugees at the
hands 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 the
ambition to establish one big European information system to control the flux
of migrants. This is an essential part of we can call the European migration
Baldaccini, A., Counter-Terrorism and the EU Strategy for Border Security: Framing Suspects with
Biometric Documents and Databases, 2008 European Journal of Migration and Law, 10, pp. 3149
at 47.
2)
L. Amoore, Biometric borders: Governing mobilities in the war on terror, 2006 Political Geography,
25, pp. 336351.
3)
A. Vedder et al., Van privacyparadijs tot controlestaat? Misdaad- en terreurbestrijding in Nederland aan
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 Briefing,
Paris: CEPS 2009, 3.
5)
B. Hayes, NeoConOptican, The EU Security-Industrial Complex, Transnational Institute/Statewatch
2009, 35; cf. H. Dijstelbloem, A. Meijer & M. Besters, The Migration Machine, in: H. Dijstelbloem
& A. Meijer (eds.), Migration and the New Technological Borders of Europe, Palgrave Macmillan (forthcoming, 2010).
1)

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machine.6 We will argue that the trust in information technology aects the
outline and development of the European migration policy. We will claim that
information technology is greedy: it elicits a dynamic of its own in which the
political ends become to depend heavily on the technical means. As a consequence, the European migration policy runs the risk of being stuck in a digital
fix, i.e. a technological fix focusing on information technology.
Following our analysis, the digitalization of the European migration policy is
driven by an instrumental view on technology. This view assumes technology to
be merely an instrument that can be deployed to achieve a political end. We will
argue that such an instrumental approach fails to grasp the greediness implied by
information technologies. Subsequently we will discuss three political issues that
arise when assessing the use of information systems for the purpose of border
control. The first issue concerns the democratic control on databases. The second
issue concerns the weak legal position of immigrants. And the third issue discusses the eectiveness 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 compensate for the abolishment of the internal borders. Nearly two years later, in
1987, the idea was proposed to establish an European database: the Schengen
Information System (SIS).7 This information system was introduced for the
purpose of registering persons and goods that should be refused entry to the
Schengen area or that are searched for by one of the Schengen Member States.
In those days, information technology was still in its infancy. However, information 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 new
era for the European migration policy. With the information being available at
ones fingertips, information systems yield the promise of absolute control on the
external borders.
Since 1995, the SIS is the general means of information exchange between
authorities responsible for border control. In the course of the time, the
number of Schengen Member States has grown. At the very moment when the
Scandinavian states knocked on the door for admittance to the Schengen zone,
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 Technological Borders of Europe, Palgrave Macmillan (forthcoming, 2010).
7)
E. Brouwer, Digital borders and real rights. Eective Remedies for Third-Country Nationals in the Schengen
Information System, Leiden/Boston: Martinus Nijho 2008.
8)
H. Abelson, K. Ledeen & H. Lewis, Blown to Bits. Your Life, Liberty, and Happiness After the Digital
Explosion, Boston: Addison-Wesley 2008.
6)

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the decision was adopted to develop a new generation of the SIS: SIS II. For
the mean time, the first generation SIS was expanded first into SIS I+ and
later cloned9 into SISone4all in order to cope with the new Member States. In
1999, the Schengen Convention was integrated into the European Union, implying that all EU Member States needed access to the SIS. This expansion has
turned the SIS into the largest running European information system. Currently,
the SIS contains over thirty one million records, including more than one million
records of persons.10 Next to the development of the first generation SIS, another
large scale information system was built: Eurodac. Resulting from the Dublin
Convention in 1991, this database was proposed for the purpose of registering all
asylum applications submitted to EU Member States. Eurodac is a means to allocate the responsibility for an asylum application to a Member State enabling the
prevention of asylum shopping. It is no longer possible for an asylum seeker to
apply in two dierent EU Member States. Interestingly, Eurodac was equipped
with biometric technology to record the fingerprints of asylum seekers in the age
of 14 and older, the so-called Automated Fingerprint Identification System
(AFIS). Biometric identification is very promising, because it relies on permanent
physical features of the human body. However, its reliability is not absolute.
About five percent of mankind has no fingerprints or has fingerprints that are
dicult to read with a machine.11 And, according the Dutch Minister of Internal
Aairs,12 the quality of the fingerprints of young children and elderly people are
so bad that they can hardly be read by a machine.
In the near future, the use of biometric technology is not restricted to Eurodac.
The second generation of the Schengen Information System is also equipped with
technology for biometric identification (fingerprints). The biometric data is stored
in a search engine, called the Biometric Matching System (BMS). And there is
more to it. Together with SIS II, an information system has been designed to
register all visa applications of non-EU citizens: the Visa Information System
(VIS).13 The SIS II and VIS will have the same technical infrastructure, including
the BMS. The VIS will be used to store information of visa applicants and the
legal person based within the European Union that supports the visa application.
This is actually a huge amount of information. The VIS is expected to become
House of Lords, Schengen Information System II (SIS II). Report with Evidence, HL paper 49, 2007, 95.
Council of the European Union, Doc.nr. 6162/10: Schengen information system database statistics dd.
01/01/2010, 05-02-2010.
11)
Ocial 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 Information
System (VIS) and the exchange of data between Member States on short stay-visas (COM(2004)835 final),
C 181, 2005, pp. 1329.
12)
Dutch Minister of Internal Aairs, Letter to the Dutch Parliament about the evaluation of biometrics for
passports, The Hague 2005.
13)
Ocial Journal of the European Union, Council Decision of 8 June 2004 establishing the Visa Information System (VIS), L 213, 2004, pp. 57.
9)

10)

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Europes largest database. To indicate the seize of the VIS: in 2008 alone about
twenty million visa requests have been registered.14
With the SIS, Eurodac, and VIS, the European Union is developing some
major instruments to control the migration flow. They cover various categories of
migrants: persons that should be refused entry or that are searched for by one of
the EU Member States (SIS), asylum seekers (Eurodac), and travellers with a visa
requirement (VIS). According to the European Council and Commission, these
information systems yet fail to detect another important category of migrants: the
so-called overstayers. An overstayer is a person whose legal residence has expired
and thus resides illegally in the EU. In order to detect overstayers, a new information system has been developed: the Entry/Exit System (EES). The Entry/Exit
System is used for the registration of entry and exit data of persons who will reside
or have resided within the EU. Importantly, the EES only registers the fact that
somebody has entered or left the EU and not where the person can be localized
during the period of residence. In September 2009, a one week data collection
exercise 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 only
12% of these registrations concerned the initial target group, that is, third country nationals with a visa requirement.
2. The Quest for Visibility
The information systems are developed to control all migrants entering and leaving the EU. The aim of the information systems is to increase the visibility of the
migration flow. This visibility facilitates both the identification of risk categories
(for example: many Chinese students entering the EU with a visa become
illegal residents) as well as recognition of migration patterns (for example: the
Netherlands attract many Somalian immigrants). Due to the process of digitalization, the European migration policy has been advanced into a kind of risk management. The traditional notion of border control has been transformed into
migration flow management that is, a regime through which migration flow
across borders are regulated through the institutionalisation of a series of risk
filters serving to identify, isolate and deflect the mala fide from the bona fide
migrant.16 According to this line of thought, the part of the migration flow
that is invisible and therefore unidentifiable presents a big threat simply because
it is inestimable.
14)
European Commission, The setting up of an Agency for the operational management of large-scale IT
systems proposed by the Commission. MEMO/09/290, 2009.
15)
Council of the European Union, Doc. nr. 13267/09: Results of the data collection exercise, 22 September
2009.
16)
Th. Gammeltoft-Hansen, Filtering Out the Risky Migrant. Migration control, risk theory and the EU,
AMID Working Paper Series 52/2006, 9.

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The advanced use of digital information enables the profiling of risk groups
that should be excluded from the EUs territory.17 Profiling, as defined by
Hildebrandt,18 is the process of discovering correlations between data in databases that can be used to identify and represent a human or nonhuman subject
(individual or group) and/or the application of profiles (sets of correlated data) to
individuate and represent a subject or to identify a subject as a member of a group
or category. The assumption is that the more information, the better the profiling of risk groups. It is assumed that absolute visibility of the migration flow
implies complete control. This results in a very restrictive strategy for the enforcement of border control by means of fine-grained sieving and sorting mechanisms.19
Critics argue in this respect that Europe has been transformed into an impregnable fortress, or perhaps better, a cyber-fortress.20
When analyzing the European migration policy, it appears that the target
group is not limited to terrorists and criminals. Currently, the European migration policy is predominantly geared towards tracking down illegal immigrants.
An immigrant is illegal when s/he resides within the EU without an administrative status or s/he has no proper documents and seeks unauthorized access to the
EU. 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. The invention of category of illegal immigrants is an attempt
to identify and isolate a flux 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 very
inaccurate one, implying a needless criminalization of immigrants. Actually, as
Baldwin-Edwards & Kraler22 have shown, the use of the term illegal immigrant
is Eurocentric: an immigrant is defined as illegal if his entry to or residence on
Europes territory is not authorized by EU Member States.
In order to cope with the invisible influx of illegal immigrants, the EU advances
dierent technologies next to the information systems. The EU has for instance
established the FRONTEX agency that coordinates the surveillance of the external borders and has a collection of brute force technologies (like vessels, airplanes,
Amoore, supra note 3, 339.
M. Hildebrandt, Defining Profiling: A New Type of Knowledge?, in: M. Hildebrandt & S. Gurtwirth
(eds.), Profiling the European Citizen. Cross-Disciplinary Perspectives, Springer & Business Media B.V. 2008,
pp. 1745, 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: Van
Gennep 2009, pp. 3559, 4043.
20)
E. Guild, S. Carrera & F. Geyer, The Commissions New Border Package. Does it take us one step closer to
a cyber-fortress Europe?, CEPS Policy brief, Paris: CEPS 2008.
21)
D. Bigo, D., S. Carrera & E. Guild, 2009 The CHALLENGE Project: Final Policy Recommendations on
the Changing Landscape of European Liberty and Security, Research Paper no. 16, Paris: CEPS 2009, 11.
22)
M. Baldwin-Edwards, & A. Kraler, Regularisation in Europe. Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU (REGINE), Vienna: ICMPD
2009, 24.
17)
18)

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and helicopters) at its disposal to pursue its task. Furthermore, the EU is constructing a surveillance system, called EUROSUR, to control the irregular itineraries used by immigrants to access Europe.23
Europes eort to make the migration flow visible for the purpose of tracing
illegal immigrants has been disputed by many. Critics have for instance argued
that the excessive trust in technology results in a quasi-military approach to the
control of Europes external borders.24 Moreover, the quest for visibility and control seems to produce its own counter eect. Instead of putting a stop to illegal
immigrants, the strict identification regime applied by the EU leaves some groups
of immigrants no other option than pursuing even more dangerous routes,
causing fatalities among immigrants.25 This phenomenon is known as the waterbed-eect or squeezed balloon-eect. Well-known are the North African boat
immigrants trying to reach the shores of Spain. Instead of crossing the Strait of
Gibraltar, these immigrants take a detour to reach the Canary Islands.
3. Re-shuing Means and Ends
The increasing number of information systems that have been or are being established to control the migration flow reveals the ambition to set up one integrated
Union information system.26 Due to legal and technical limitations, this ambition cannot be fully realized. Therefore, the European Commission opts for the
second best solution: realizing synergy by promoting the interoperability between
the current and future information system, thus anticipating a network of European databases.27 The argument for harmonizing and integrating the information
systems is economic in nature. The synergy and interoperability between the
systems promises less costs, increased eciency, and increased eectiveness.
It is interesting that the European Commission conceives interoperability as a
sheer technical concept.28 According to the European Commission, it concerns
the mere technological possibility to exchange data and to enable the sharing
J. Jeandesboz, An Analysis of the Commission Communications on Future Development of FRONTEX
and the Creation of a European Border Surveillance System (EUROSUR), Briefing paper for the European
Parliament, 2008; Commission of the European Communities, Communication from the Commission to
the European Parliament, the Council, the European Economic and Social Committee and the Committee of
the: Examining the creation of a European Border Surveillance System (EUROSUR), COM (2008) 68 final,
13-2-2008.
24)
T. Spijkerboer, Th., The Human Costs of Border Control, 2007 European Journal of Migration and
Law, 9, pp. 127139, 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 Council
on the second-generation Schengen information system (SIS II), nr. A5-0398/2003, 07-11-2003, 9.
27)
D. Broerders, The New Digital Borders of Europe. EU Databases and the Surveillance of Irregular
Migrants, 2007 International Sociology, vol. 22, nr. 1, pp. 7192.
28)
European Commission, Improving eciency and interoperability of large-scale databases in the field of
Justice, Freedom and Security A short glossary. MEMO/05/440, 2005.
23)

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of information. This vision on interoperability gives expression to a strong instrumental account of technology. The European Commission considers technology
merely as a means to accomplish a particular goal.
In the report NeoConOpticon. The 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 Aairs policy started in
2002. Exploring the potential synergy between the existing (SIS, Eurodac) and
future (SIS II, VIS, EES) information systems, a working group outlined two
possible 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 first option appears both unlawful and technically impossible. Consequently, the EU has pursued the second option: support the exchange
of 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 interoperability
amounts 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 firewalls between government datasets, the creation of
multipurpose surveillance systems, and an erosion of the laws and principles
of data protection.30 Interoperability is thus not merely a technical issue. It intrinsically aects the complete political and legal organization supporting the information systems.
The instrumental view on technology displayed by the European Commission
is too narrow to account for the dynamic that is unleashed when political goals
are implemented by information technology. Information technology is more
than a means to accomplish a well-defined goal. Information technology is
greedy;31, 32 it has the capability to (re-)shape its predefined goal. Information
technologies bring about distorting eects. Consequently, the trust in information technology to enforce Europes external borders has a drawback. Information
technology elicits a dynamic in which the political ends are becoming more and
more dependent on the technological means. Actually, the possibilities to make
the migration flow visible are strongly dependent on the possibilities oered by
the technological means. The development of the second generation of SIS can be
used to illustrate this relation between technological means and political ends.
Hayes, supra note 5, 7071.
Ibid., 71.
31)
P. Frissen, Gulzige technologie ontbeert politieke sturing. Informatisering dwingt tot bestuurlijke
herbezinning, 1989 Binnenlands Bestuur Management, 2, pp. 1216.
32)
Dijstelbloem & Meijer 2009, supra note 6.
29)
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The first political decision to start developing the second generation of the SIS
dates from 1996, at the time when the Scandinavian countries were admitted to
the Schengen Convention. When the decision was ocially adopted in 2001 to
develop SIS II, the members states started negotiating the functions that the new
information system should include. The negotiations, however, progressed very
slowly. In order to avoid a substantial delay of the development of SIS II, it
was proposed to build a flexible technological architecture comprising all potential functions in anticipation of the outcome of the negotiations between the
Member States.33 Whenever the Member States agree on the introduction of a
new function and have arranged the legal framework, the function can be updated
instantly. This is denoted by the notion of latent development,34 implying that
the technical pre-conditions for all new functions are available in SIS from the
start and that these functions can be activated once the political and legal arrangements are in place.
The extendable technical infrastructure35 is very problematic concerning the
relation between technological means and political ends. The idea of a latent
development actually reshues this relation. As a matter of fact, the fundamental
political discussion between Member States on the functions of SIS II is eectively already settled on the technical level. In this sense, the political decisionmaking is conditioned by technology. Indeed, why would an information system
be developed with a wide range of functions if only a few of these functions will
be used in the end? With the technical architecture in place, it is only a matter of
time before the new functions will be deployed. In the case of SIS II, the means
thus justify the end, as the European Data Protection Supervisor has noted.
At first sight, SIS II is designed as a means to a particular end; it is a means to
register persons and objects for the purpose of border control. This instrumental
view, however, fails to grasp the dynamic particular to information technology, its
greediness. 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 technical
infrastructure have the potential to direct the political decision-making and redefine the goal of SIS II. The technological possibilities can thus be advanced to
re-shape the purpose of information systems.

Commission of the European Communities, Communication to the Council and the European Parliament on the Development of the Schengen Information System II, and possible synergies with a future Visa Information System (VIS), COM (2003) 771 final, 11 December 2003.
34)
Council of the European Union, Doc. nr. 6387/03: Summary of discussions, 25 February 2003.
35)
Commission of the European Communities, Communication to the Council and the European Parliament on the Development of the Schengen Information System II, COM (2001) 720 final, 18 December
2001, 11.
33)

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4. Political Issues
So far, our assessment of the European migration policy focused on the particular
dynamic displayed by greedy information technology. The development of the
migration policy gives the impression that EU is dependent on information
technology. What is technological feasible appears as what is politically needed to
control the migration flow. The greediness of the European information systems
gives rise to three political issues. The first issue relates to the question as to how
democratic control can be exercised on the information systems. The second issue
concerns the legal position of immigrants who are registered in the European
information systems. The third issue touches upon the eectiveness of information systems.
4.1. Democratic Control
In view of the EUs ambition to advance the interoperability between the existing
and new information systems, the exercise of democratic control should be safeguarded. Towards this end, transparency about the functioning of information
systems is indispensible. What information is processed and stored? What is the
quality of this data? Which authorities have access to this information? And what
results are achieved with it? Currently, the information systems often lack transparency about the information that is contained by the systems as well as the
authorities that have access to this information. This has consequences for the
exercise democratic control on information systems. The SIS and Eurodac
are two interesting examples in this respect.
Since the implementation of the SIS in 1995, the statistics have not been published regularly, the statistics that have been published were not complete and
critics 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. The information in the national
systems is copied to the central system. Accordingly, the central system is the
means to share the information from the national system with other Member
States. In practice, the key role of the national systems is major obstacle for the
functioning of SIS. Inspections by national data protection authorities have demonstrated that there are dierences between Member States regarding the application 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 European Parliament made use of that exquisite occasion to put the issue of demoCf. Brouwer, supra note 7, 6570.
Joint Supervisory Authority of Schengen, Article 96 Inspection. Report of the Schengen Joint Supervisory
Authority on an inspection of the use of Article 96 alerts in the Schengen Information System, 20-06-2005;
Joint Supervisory Authority of Schengen, Article 99 Inspection. Report of the Schengen Joint Supervisory
Authority on an inspection of the use of Article 99 alerts in the Schengen Information System, 18-12-2007.
36)
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cratic control on the agenda. The European Parliament insisted to settle the
strategic management of SIS II as soon as possible. In view of other large-scale
information systems and the synergy between them, the European Parliament
argued that the democratic control should be settled fundamentally by establishing a European agency.38 Recently, the European Commission published a proposal for such a regulatory agency.39 The agency will be responsible for the
operational management and the publication of statistics. Importantly, the agency
will also be responsible for data security and data integrity as well as the compliance with data protection rules. In the long run, the regulatory agency is envisioned to become a centre of expertise for IT systems in the Area of Freedom,
Security, and Justice.
The current developments of Eurodac illustrate the other important issues
related to democratic control: who has access to the information system and what
results are achieved with it? Recently, a proposal of the European Commission
has been published to use the information on asylum applications more eciently by granting law enforcement authorities access.40 Initially, only a limited
number of authorities had access to this information system. These authorities
have a responsibility that is directly linked to the practice of the asylum policy.
Granting wider access to Eurodac stems from the Hague Programme which dictates with the principle of availability that the information exchange between
law enforcement authorities should be improved. Data protection authorities
have criticized the proposal of the European Commission to widen the access to
Eurodac. They argue that it is an unsubstantiated proposal: the legitimacy and
necessity of the wider access has not been demonstrated.41
The proposal to widen the access to Eurodac is a clear example of function
creep. Function creep is the way in which information, that has been collected for
one limited purpose, is gradually allowed to be used for other purposes. Actually,
the proposal yields the potential redefinition of Eurodacs political purpose.
Whereas Eurodac is initially deployed for the control of asylum seekers, it is now
envisioned to facilitate Europes combat against illegal immigration and terrorism. The incremental development of Eurodac thus bears the possibility to transform this system into a dierent one. This has far-reaching consequences for the
functioning of Eurodac.

European Parliament, supra note 26.


Commission of the European Communities, Communication from the Commission: Legislative package
establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security
and justice, COM (2009) 292 final, 24-6-2009.
40)
European Commission, Police cooperation: Allowing access to fingerprints stored in EURODAC by
Member States law enforcement authorities and by Europol, MEMO/09/382, 2009.
41)
European Data Protection Supervisor, Law enforcement access to EURODAC: EDPS expresses serious
doubts about the legitimacy and necessity of proposed measures, Press Release, 8 October 2009.
38)
39)

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4.2. Legal Position of Immigrants


The second political issue implied by the greediness of the European information
systems is the legal position of individuals who are registered in the information
systems. For the EUs interest, migrants need to subject themselves to a set
of information systems. In this respect, the interest of the EU outweighs in
this respect the interest of migrants. The decision adopted in 1999 to develop
Eurodac exemplifies this. Eurodac is a measure to harmonize the asylum policies
between the EU Member States. The interest of the EU Member States for harmonization by means of Eurodac is self-evident: the responsibility for an asylum
application 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 interest
of immigrants is not strengthened by Eurodac. It is, rather, once again the EU
that strengthens its position. The immigrants will only benefit from the harmonization if the grounds on which an asylum application is approved or rejected are
also harmonized between Member States.
The EU is currently negotiating a common asylum policy to align the criterions for asylum for approval or rejection of asylum applications. At this moment
in time, however, each EU Member State takes a decision on asylum applications
based on its national interest. The grounds for approval or rejection of asylum
applications between EU Member States therefore appear to be arbitrarily. Consequently, immigrants are stimulated to direct their asylum application to EU
Member States that decides upon grounds that will maximize the success for
approval.
The fact that the European immigration policy is inclined to strengthen the
interest of the EU Member States against the interest of immigrants aects the
way in which the legal position of immigrants is safeguarded by the information
systems. Take once again the SIS. As mentioned above, there are problems concerning the interpretation of the criterions to register a person. It is well known
that in the past Germany has registered asylum seekers who have exhausted all
legal procedures. After this, the French Conseil dEtat has decided in a lawsuit that
these alerts of third country nationals are not line with the Schengen Convention
and therefore unlawful.42 So in eect, it is up to the immigrants themselves
to challenge wrong registrations and correct the Member States registration
practice.
The wrongful registration of immigrants in the SIS even becomes more pressing when looking at the possibilities of immigrants to contest their registration
and execute their rights to do so. In an investigation by the Dutch Ombudsman
into the registration of third country nationals in the SIS, the bureaucracy is
unravelled in which immigrants are captured when they wish to contest their
42)

Brouwer, supra note 7, 371.

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467

registration and exercise their rights.43 First of all, the investigation of the Dutch
Ombudsman reveals a kind of automated decision making by the Immigratie en
Naturalisatiedienst (IND), the responsible authority in the Netherlands for the
registration of third country nationals. Actually, the IND does not make a dierent consideration for immigrants whose legal residence has expired for three days
or eight years. Secondly, the Dutch Ombudsman reveals three lacunas when
immigrants are registered:
(1) immigrants are not properly informed about the fact that they are registered,
(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 registration in the SIS.
Interestingly, immigrants that are registered in the SIS can factually only exercise
their rights in the Member State that is responsible for issuing the alert. Tacking
stock of the investigation of the Dutch Ombudsman, it will be interesting to
examine how the other Member States have institutionalized the decision making
process for the registration of third country nationals. As a matter of fact, this
points out once more the asymmetry between the EU Member States and the
immigrants. A SIS-alert on a person by a particular Member State is obeyed by all
other Member States. However, immigrants who wish to exercise their rights cannot appeal to an EU-authority. They will have to address their complaints to the
authorities of a particular Member State, i.e. the authorities of the Member State
that 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 the
assumptions as to safety of the use of their data and accuracy and eciency of the
technology turn out to be misplaced.44
4.3. Eectiveness of Information Systems
The third political issue that we wish to address relating to the greediness of
information technology concerns the eectiveness of information systems. The
eectiveness of an information system can be examined by measuring the results
that it has produced against its purpose. Two conditions are required to examine
the eectiveness of an information system: reliable data about the functioning
of the system and a clear definition of the systems purpose. Hence, transparency,
in the sense as we have discussed it above, is the pre-condition for measuring
Nationale ombudsman, de, Toegang verboden. Onderzoek naar de opname van vreemdelingen in het
Schengen Informatie Systeem en de informatievoorziening hierover, Rapport 2010/115. Den Haag 2010.
44)
Baldacinni, supra note 1, 49.
43)

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the eectiveness of information systems. The critical function of measuring the


eectiveness with respect to the European migration policy can be illustrated
conveniently by discussing the Entry/Exit System (EES) in comparison with
the US-VISIT program.
The EES is developed to detect overstayers, third country nationals whose
legal residence in the EU has expired. The EES works similar like a hotel manager
who checks everyday which guests are expected to be in the hotel and which
guests should have left the hotel.45 The EES is complementary to the VIS. The
VIS registers the persons who have applied for a visum. A visum authorizes these
persons to legally reside within the EU for a limited period of time. However, the
VIS itself does not detect when visa travellers expire their legal residence. When
considering the added value of the EES, it is important to examine its (presumed)
eectiveness. What results is it likely to produce? This question becomes even
more interesting when considering the costs and diculties for the development
of large scale it systems like SIS II. The costs of SIS II are over 90 million for the
central system46 and over 20 million for each national system (Member states
budget; this amount is based on Dutch figures).47
For assessing the eectiveness 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 started
developing 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 and
2008 about 113 million immigrants have been registered in the information system. In this period, more than 1800 individuals have been stopped entering the
USA with the help of US-VISIT. Taking into consideration that through the year
2009 the US VISIT-program has cost about $ 2 billion, each suspect that was
stopped at the border cost over $ 1 million. The reason why the results of the USVISIT program so far are somewhat disappointing is due to the fact that the
system does not function properly.49
The 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 immigrants
P. Hobbing & R. Koslowski, The tools called to support the delivery of freedom, security and justice: A
comparison of border security systems in the EU and in the US, Briefing paper for the European Parliament,
2009, 29.
46)
Commission of the European Communities, Commission Sta Working Document: Report on the financial and contractual aspects of developing the second generation Schengen Information System (SIS II), SEC
(2010) 436 final, 12 April 2010.
47)
Dutch Minister of Internal Aairs, Letter to the Dutch Parliament about the state of aairs SIS II, The
Hague 2010.
48)
Hobbing & Koslowski, supra note 45.
49)
Ibid., 2; S. Peers, Proposed new EU border control systems, Briefing paper for the European Parliament,
2008.
45)

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469

country of origin, (2) entry-phase inspection of immigrant when arriving at


the US border, (3) status-phase: check on immigrants legality of residence, and
(4) exit-phase: recording the immigrants departure. The weakness of the system
concerns the exit-phase. Actually, the airlines and visa travellers themselves
(by means of self-service terminals at ports of entry) were made responsible
for recording the departure in the system. None of the US authorities took
control of the exit-phase.50 This has resulted in a system with huge amount
of information on the entry of immigrants, but little information on the departure of these immigrants. As a consequence, the exit-phase in the US-VISIT
program seriously aects its eectiveness. If the exit data is missing, all immigrants will be identified as overstayers.
This is also a lesson to bear in mind for the EES: the eectiveness of an entryexit system can only be ensured if an entry record can be matched against an exit
record. According to Hobbing & Koslowski,51 it is currently impossible to realize
the 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 noted
above, during the one week data collection exercise that was arranged to examine
the added value of the EES only 12% of the registered persons concerned the
initial target group, i.e. third country nationals with a visa requirement. As Peers
notices, it is assumed that the system would not apply to EU citizens, since the
Commissions communication does not address that issue expressly and it is
highly 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 eectiveness of the EES, the target group should first be determined purposively. After
all, this has important consequences for the outline of data to be collected and the
definition of the systems purpose.
Conclusion
We started this article by taking up the question whether European migration
policy is stuck in digital fix. By analyzing the process of digitalization, we have
elaborated on the ambition of the EU to set up one big information system.
This ambition is realized by fostering synergy between the existing and future
information systems: the SIS, Eurodac, VIS, and EES. We claimed that the EU
displays an instrumental account of technology, risking to make the definition of
political goals more and more dependent on the possibilities oered by information technologies. The idea behind massively registering migrants in information
systems is to make the migration flow visible and identify risk categories. This
50)
51)
52)

Hobbing & Koslowski, ibid.


Ibid.
Peers, supra note 49, 1; our italics.

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quest for visibility, however, has a flipside. A part of the migration cannot be
rendered visible, resulting in a residue category with an inestimable risk: illegal
immigrants.
Having analyzed the particular dynamic displayed by greedy information technology within the context of the European migration policy, we have identified
three political issues. The first issue concerns the conditions for exercising democratic control on the information systems, in particular transparency about the
data contained by the systems and the authorities that have access to the systems.
The second issue relates to the legal position of immigrants. We claimed that
there is an asymmetry between the EU and the immigrants. The strong interest of
the EU implies a weak legal position of immigrants, resulting in bureaucratically
complex and diuse procedures for immigrants to exercise their rights. The
third issue touches upon the eectiveness of information systems. By comparing
the Entry/Exit System with the US-VISIT program, we have identified the conditions for an information systems to function smoothly and produce the expected
results. Still, if these conditions are met, the question can be raised whether the
price is right for producing these results.
The EUs trust in information technology for the purpose of border control is
motivated by its promises: improved eciency and warranted eectiveness. Surely,
a great deal of information exchange is just impossible without information systems. However, blind trust makes the European migration policy susceptible to
the greediness particular to information technology. In that case, the European
migration policy runs the risk of confining itself to the possibilities oered by
information technology and to be stuck in a digital fix. The EU may be attracted
by the unprecedented possibilities for border control presented by information
technology, but the EU should not consider it as a standard solution.

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