We (still) know where you’ll be next summer


And if you’re headed to the US,  we’ll know a lot more than that

Last year, we told you that we’d probably know where you’ll be over the summer. We were referring to the passage of legislation in the EU that tracks travellers: the EU Passenger Name Records (PNR) Directive. A year later, governments in the EU and around the world are still cheerleading border surveillance at the expense of your right to privacy. That means that when you travel, your fundamental rights are at risk.

Crossing EU borders: not the adventure you were looking for

Many tourists choose to travel to Europe in the summer, but at it stands, doing so will require you to give up some of your privacy. That’s because over the past few years, the EU has adopted a series of laws and international agreements that require the travel industry and authorities to collect, store, and retain the personal travel records of everyone entering, travelling within, or leaving the EU, indiscriminately and in the absence of suspicion. With the so-called Smart Borders legislation (adopted just this month) and international PNR agreements, we are starting to see the mass collection and retention of sensitive data and biometrics at the borders become a dangerous new norm.

Needless to say, the implications go well beyond tracking tourists’ movements. Creating a detailed dossier on individuals simply because they choose to travel is not only privacy-invasive and inherently disproportionate, it increases the risk of human rights abuses for the most vulnerable people and communities. History shows us that when data are collected and profiling techniques are used, they tend to be discriminatory.

Profiling is when authorities analyse your personal information in order to make assumptions about you. The analysis could range from guessing your holiday itinerary to weighing the likelihood that you are a terrorist. In practice, profiling means that if you are part of — or connected to — a religious, ethnic, or other type of targeted community, it’s more likely that authorities will violate your privacy without cause, and you will be forced to think twice about how your personal choices will be interpreted by agents at the border.

Politicians typically cite “security” as a justification for mass data collection and profiling, evidently subscribing to the theory that it’s smart to treat all passengers as guilty until proven innocent. Yet neither the EU nor its member-state governments have shown evidence to demonstrate that these measures actually improve security. In fact, creating massive databases of information on everyone who travels may instead bury the needle ever more deeply in the surveillance haystack.

The EU PNR Directive adopted last year authorises border surveillance that affects everyone travelling in Europe, whether or not you are an EU citizen. The Directive forces airlines to collect and share your travel information with authorities, and some countries also force train, bus, and boat companies to do the same. The message is clear: no matter who you are, where you’re from, or how you choose to travel, if your plans include crossing a border in the EU, your private information is fair game.

Border surveillance is a global obsession

But the EU does not hold a monopoly on border surveillance. Countries around the world are pushing through measures to track travellers and are increasingly monitoring and collecting more data. In the US, for example, the Department of Homeland Security (DHS) is considering asking travellers to hand over the passwords to their social media accounts for “extreme vetting” when they enter the country, a policy Access Now strongly opposes.

This is an escalation from current privacy-invasive practices in the US. DHS already added a new field to its visa waiver application form requesting “social media identifiers” from travellers. Those waivers are mandatory for all EU citizens visiting the US. Even though travellers do not have to fill out that field — doing so is optional, for now — simply asking for the information chills freedom of expression. The government has failed to explain how the information will be used. That’s disturbing, especially for travellers who believe they may be targeted for surveillance because they are of a particular faith or ethnic group. The US has also proposed this type of data collection for travellers from China.

More recently, the US State Department has sought to collect social media identifiers from “populations warranting increased scrutiny,” an indication that the US will continue to propose policies that discriminate against certain communities, which appears to be a defining characteristic of the Trump administration’s “extreme vetting” agenda.

Asking or requiring that people hand over social media information at the border is neither secure nor rights-respecting. The information on social media is deeply personal, and asking customs agents to make decisions based on their interpretation of a traveller’s conversations, posts, and relationships is dangerous. There is no guarantee that an agent would understand the context, or have any knowledge of an individual’s language or culture.

So what will this summer bring us? More scrutiny, and more pushback

Despite the efforts of some governments to push forward with these misguided, over-reaching initiatives, border surveillance measures are coming under increasing public and legal scrutiny.

Since December 2014, the EU Court of Justice has been evaluating the EU-Canada PNR to assess whether it is valid under the Charter of Fundamental Rights. On July 26, the Court will rule on the matter, and this will determine whether the EU Parliament can adopt the agreement. Access Now will report on the ruling and provide a detailed analysis over the summer.

In the US, it is likely the Trump administration will introduce additional invasive surveillance measures as part of its “extreme vetting” policies. The US Supreme Court has allowed the administration to enforce the president’s executive orders for a travel ban against six predominantly Muslim countries. As part of the travel ban’s implementation, the administration will continue to review screening procedures throughout the summer — and those procedures will likely continue to target travellers from the six identified countries. The Supreme Court will ultimately have to evaluate the constitutionality of any changes. In the meantime, Access Now will continue leading a coalition to push back against invasive data-collection policies at the US border.  You can join us in taking action at FlyDontSpy.