COM 02/2017

Integrating Technology: The first step towards theorizing the role of border surveillance in the European Border Regime, and its relationship to European Integration Theory

Georg Huber, Institute for Technology Assessment and Systems Analysis- Karlsruhe Institute of Technology

European Integration Theory has long been an established sub-field in the field of European Studies. However, the role of technology as an element of the policy has not been very prominent. This article is a very first step in an attempt to change this, taking the policy domain of European Justice and Home Affairs and the issue of surveillance technology in border protection as an example. It should be the beginning of an endeavor to better understand the role of technology in European policy making in general and in European Justice and Home Affairs policies and border management in particular, taking a theoretical angle at the issue.

Since its inception, the European Union has been a fascinating subject for political scientists and in particular for scholars of theory in the field of Political Science. Its extraordinary degree of regional integration and its unique political and juridical structure, entailing both intergovernmental and supranational elements, often characterized as a sui generis case, led to the creation of a new kind of polity, which can be neither characterized as sovereign state nor as an international organization. Right from the inception  of the European integration process, theories of European integration, were they normative, descriptive or analytic, played an important role in the academic discourse on European integration (Wiener, A., Diez, Th.,2009, pp.1-22). This is unsurprising as the European Union is a particularly interesting subject for theorizing as its unique governance structure forbids a simple transfer of theory based on national states and their relations to each other to its case. Consequently, it posed a challenge to many tenets of political and International Relations theory.

In response to this challenge, scholars from these fields created a competing set of theories in order to analytically grasp the nature of this emerging, consolidating and now established polity. These theories were designed to forecast its development, and theorists changed and adapted their theories throughout the history of the Union.

The questions asked by European Integration Theory are touching on core aspects of political theory, on the nature of sovereignty and the national state. Is the Union primarily a vehicle for cooperation among sovereign states, driven predominantly by their preferences and interest? What importance should be assigned to the supranational institutions such as the Commission, the Parliament and (I would add) the Court of Justice? Will the European Union develop into a full-blown federation, even a unified European state?

This is particularly true in one area of policy making in the European Union that is the policy domain (the area of policy making) of Justice and Home Affairs (also known under the term of the Area of Freedom, Security, and Justice). It is a particularly interesting subject as it regulates areas which are considered to be core tasks of sovereign statehood, such as the protection of borders or internal security. Thus, it is remarkable that there is any cooperation between member states at all, and so it is worth a deeper analytical and theoretical look.

In this short contribution, I am not going to make an attempt to create a “Theory of European Integration in the field of Justice and Home Affairs” which would indeed be a somewhat overambitious exercise. Instead, I focus on a very specific aspect of European Justice and Home Affairs and approach it from a particular angle: I formulate, as a first step for theorizing it, the issues that a theory of this specific issue has to grasp. I will leave the next step, formulating such a theory or choosing one out of the existing set of theories, to future efforts.

Specifically, I start creating a theoretical framework concerning the issue of the protection of the Schengen borders, and the particular angle I take is the use of technology (more precisely, surveillance technology) in the European Border Regime.

In recent years, there has been an increase of databases, interconnection of databases data retention and surveillance policies which are intimately linked to more general aspects of migration policy. This has formed a fascinating techno-political assemblage: besides its fascinating “empirical” (that is legal political and technological) properties, it is also worth to theoretically examine the role and function of technology in European policy making, which ideally might relate to other technological policies in the EU.

Before I lay out the aspects of the field that a theory of surveillance technology in European border management has to grasp, I will quickly recapitulate the history of the field and the issue.

Cooperation in the field of Justice and Home Affairs began slowly as informal cooperation against terrorism among European law enforcement agencies in the 1970s. For a long time, the field retained its informal and intergovernmental character, even after it was institutionalized into European primary law through the introduction of the third pillar in the Maastricht Treaty. The intergovernmental character was maintained as the European Parliament had limited decision-making powers and the Court of Justice had only limited jurisdiction in the third pillar. Furthermore, the decision-making process in the Council strongly displayed its intergovernmental character (decisions by unanimity).

Only 2009, with the Lisbon treaty entering into force (which abolished the pillar structure) were the decision-making processes normalized, the normal legislative procedure (meaning full co-decision powers for the EP and the power to veto legislation) extended to all areas of Justice and Home Affairs policy, and the jurisdiction of Court fully extended (Craig, P., De Burca, G., 2015, pp. 964-967).

From 1999 to 2014, policy making was framed by European policy programs for the field, the respective Tampere, Hague and Stockholm Programme, (European Council 1999, 2005, 2010) were initiated by the European Council. This again shows a certain dominance of intergovernmental modes of decision making. By formulating these policy programmes, the European Union’s member states national governments not only made Justice and Home Affairs policy a priority, they also gave a certain policy consistency to the field. On the level of politics (i.e. the procedural and institutional level) they also, by using the forum of the European Council, retained control over the long-term policy framing in the field vis-a-vis the more intergovernmental institutions of the EU.

On a policy level within the EU, two developments shaped the policy agenda: The creation of the Schengen Area, and the subsequent development of a common system of migration management and border protection. Another major development, this one external, also shaped it: The Global War on Terror resulting from the terror attack in the U.S. of September 11, 2001.

It is difficult to overstate the importance of these driving factors, as many of the relevant policies were introduced with either one, or both in mind.

The former led to the creation of the common asylum system (regulated by the Dublin Regulation), which in turn led to the creation of the Eurodac database for the fingerprints of asylum seekers, in order to prevent “asylum hopping”. Another database related to the European border regime (yet under another legal regime) is the Visa Information System containing the biometric data of those third-country nationals entering the Schengen Area with a visa. The planned Entry-Exit System would contain the entry date and the exit date as well as the biometric data of all short time (less than 180 Days) visa-holding third country nationals, while the planned ETIAS system (comparable to the US ESTA system) would contain the data of those not needing a visa.

Furthermore, there are plans to unify these databases (plus probably the ECRIS database containing crime related data) or at least make their data accessible together, all of which contain biometric data, to one biometric “core database” (Monroy, M.2016). The upcoming retention of Passenger Name Records needs to be added to this list of border related data bases. And last but not least, there is the Schengen Information System II, the central database for European border protection.

Not a database but rather a massive surveillance system is the multi-platform, multi-technology border surveillance meta-system Eurosur, run by Frontex (the European Border and Coast Guard). The fight against terrorism (and crime in general) further initialized a huge range of measures from the (annulled) data retention directive, to the European Arrest Warrant.

It would, of course, be unfair to portray EU Justice and Home Affairs policy simply as a collection of rather “repressive” measures focusing on the fight against crime and terrorism. Thus, even though they are not the focus of this article, other very important measures in the field of Justice and Home Affairs policy (such as the foundation of the Fundamental Rights Agency, and important developments in European family law, or in the field of data protection with the General Data Protection Regulation as the most important measure) deserve to be mentioned. The latter will update, unify and strengthen the European Union’s Data protection Regime and replace Directive 95/46/EC.[1]

The deployment of surveillance technologies in the European border regime is a political act, and it forms part of a more general policy concerning migration and border control. Thus, such a theory must be able to grasp the policy (of employing surveillance technology in in the European border regime) in the field (European Union Justice and Home Affairs) and the polity (the EU) where it takes place.

Considering this history and this admittedly incomplete list of measures, I now will formulate the following conditions that need to be fulfilled in order to theorize the deployment of surveillance technologies in European border management

The national and European levels of policy making

As in almost any EU policy field, it is necessary to reflect on both levels of policy making, the domestic and the European arena. This is even more the case in Justice and Home Affairs policy as the issues dealt with in the field are of highly sensitive nature, crucial for sovereignty and identity of the member states. They are election-relevant hot topics in national arenas and thus unlikely to be fully transferred to European level. Thus, the multi-level nature of European policy making needs to be reflected in the theory.

The institutional set-up of the EU institutions

As in other fields of European policy making, any theory of Justice and Home Affairs policy making needs to reflect on the institutional set up of the EU and its particularities and the effect which differing modalities of the institutional architecture has on policy making. This is particularly true for Justice and Home Affairs policies as a field where the institutional set-up differed substantially from other areas for a comparatively long period time of time.

The complexity of the issue

In Justice and Home Affairs policy in general and in migration and border protection policy in particular, there is not only a national and a European dimension but also an external dimension that is expressed in agreements with third states and in the European Neighborhood Policy which also (inter alia) aims at controlling migration. The usage of surveillance technology in the European border regime has to be contextualized in this complex policy environment.

The role of agencies

The diverse surveillance technologies are run by EU agencies such as the EU large scale IT Systems agency eu-LISA or Frontex. Many pilot projects are run by national police agencies. All these agencies have their own interests at stake when surveillance-technology-based policies are introduced. These interests might also influence technology implementation. The agencies/ role as policy agents in their own rights should not be underestimated; especially in a field such as Justice and Home Affairs that has its roots in the cooperation of (national police) agencies.

The role of non-state actors

When dealing with surveillance technologies in the field, there are several actors that are not part of a state nor of the EU institutions that need to be taken into account. There are the producers of the technologies which, of course, have a stake in their development. There is also the scientific community and the importance of science policy in developing these technologies. Arguably, the scientific community is not exactly a non-state actor, but it must be added to this list as it is neither a classical political actor, nor an agency. Further, there is the very vocal and well organized European civil society in the more general field of civil liberties and digital rights, which is concerned with these issues as well. Finally, there are the travelers, refugees, and migrants themselves who are the subjects of control and registration through these technologies.

The role of technology itself

Surveillance technologies have what can be called “political agency”. They shape policies by the fact that technological choices (such as what data to include) have a direct effect on policies and their implementation. Furthermore, the mere existence of surveillance technologies often creates the desire for using more such technologies on the side of states and their agencies. It suggests itself to states, and agencies of the state, to extend their usage, open up access of their data to new agencies, or interconnect databases or surveillance measures. Thus, their existence could influence future policy development.

These are the very basic specific historical developments of the field, and are the most basic specific particularities of the usage of surveillance technology in the field of European border protection that the theory of that topic would need to grasp.

Obviously, this very short attempt only scratches the surface and further work is needed, especially for next step: the formulation of the theory itself.

[1] N.B.: The field of European data protection is of curse more complex besides these two instruments, the case law of both the European Court of Human Rights and the Court of Justice (of the European Union) is particularly important.