New negotiations on access to EU biometric data by US authorities

The USA is not letting up on its demands for "continuous and systematic transfers" of data on fingerprints and other biometric characteristics. From 2027, the transfers are to be a prerequisite for visa-free entry from the EU. From the outset, the US government wanted to implement such a[Link auf Beitrag 3564635] "partnership for enhanced border protection" via a deal for all member states. However, the EU Commission let it be known in November that a relevant transatlantic working group had stopped its work. The USA apparently wanted to push through its demands bilaterally via agreements with individual EU countries. According to a new Brussels document, however, a new overarching EU-US treaty is probably necessary after all, as existing agreements do not cover the desired data access.

As part of the "Enhanced Border Security Partnership" (EBSP) demanded by Washington, the authorities would be able to "match the fingerprints of travelers seeking entry or immigration status with their respective criminal, terrorism and identity records". They would then receive a large amount of personal data in the event of a match. Such an agreement is to become a new condition for future participation in the Visa Waiver Program (VWP). This program currently allows visa-free entry to the USA via the simplified ESTA application.

As the then Belgian Council Presidency wrote in a confidential paper to the Committee of Permanent Representatives of the Member States (Coreper) at the beginning of June, numerous EU countries are calling on the Commission to "take the initiative and conclude a corresponding agreement between the EU and the USA". Washington has "clearly confirmed on several occasions and at various levels" that the conclusion of such an EBSP agreement is considered necessary, the Council leadership emphasizes in the document on the "way forward" published by the British civil rights organization Statewatch.

According to the document, the Commission informed delegations at the beginning of 2023 of its intention to "work with the US to develop a proof of concept to support Member States". This "proof of concept" had listed possible framework conditions for data exchange and was intended to serve as a basis for further discussions between the parties involved "to identify the possibilities and limitations related to the intended exchange of information". The Brussels government institution presented the first version of the project at a workshop in October 2023. A revised version was submitted to the Department of Homeland Security (DHS) in December and discussed with them in January 2024.

Fundamental question of legality unresolved

However, much remains unclear. "Despite attempts over the past two years to gain insight into the situation", according to the Presidency, "no further concrete steps could be identified". Even the Council's legal service has already intervened. The Commission rejected a freedom of information request from Statewatch for the publication of documents relating to the feasibility study because relevant publications could jeopardize public security and international relations.

Belgium suggested that "the Commission could, for example, develop an annotated checklist of concerns". Such a checklist would be useful to the member states, especially in matters of data protection or reciprocity of information exchange, should negotiations take place at bilateral level. This would also allow the EU countries to "coordinate their messages", which would strengthen their position vis-à-vis the USA. However, there is also the "fundamental question" of whether the data exchange intended by the USA is even possible under EU law: "We must carefully examine the appropriateness of the proposed data transfers, especially in comparison to the possibilities of information exchange between EU member states". The Belgians have since handed over the dossier to the new Hungarian Council Presidency, which has not yet scheduled a debate on the matter.

(nie)