UK introduces 'E-Borders' programme, proposing more surveillance and profiling of all

In a tipping of the hat to the Americans, the UK is set to establish the largest border surveillance programme to date.  The new programme will involve the collection of biometrics on visitors to the UK, the generation of vast information stores on all Britons and visitors, and a profiling system to identify those worthy of further scrutiny.

This programme does not merely apply to combatting terrorism however; it is for use for general policing matters.

We have archived the 'partial' regulatory impact assessment here.

Background

When the American Government began requiring access to airline reservation databases of foreign carriers, significant opposition arose from many quarters.  It was opposed on grounds of costs (by the carriers) and civil liberties (by NGOs such as PI and the ACLU) and on grounds of privacy (by the European Commission).  After tough negotiations the U.S. was forced to minimize its access to the information, and limit stricly the retention period.

Similarly, in 2004 the U.S. began fingerprinting all visitors.  The response was one of shock and dismay as complaints arose regarding the felt-criminalisation of all non-Americans.

Also, when the U.S. proposed a passenger profiling system, i.e. CAPPS II, significant concerns arose from a variety of sectors on grounds of costs, civil liberties and race relations.  Opposition mounted so greatly that eventually the Government had to back down and abandon the system in favour of a simplified watchlist-monitoring programme.

Learning No Lessons

On June 5th the UK Government is moving forward on its own proposals for managing borders which will bring the worst of the U.S. systems together.  Under the 'eborders' and 'border management programme' (BMP), the Government is proposing a radical re-organization of border and travel surveillance policy.

The shared programmes will implement biometric collection at borders (fingerprints, iris scans), the collection of passenger-information from airlines, the profiling of passengers before they arrive or depart the UK, the retention of personal information for an indeterminate amount of time, and the sharing of this information with a number of agencies for the purpose of general policing.

As usual, this is being proposed at a minimal of costs (despite the US-VISIT system projected at costing 15 billion USD, and the recent fiascos with the UK Identity Card costings), and, as usual, the government is arguing that civil liberties will be protected while industry burdens are minimized.

One reason behind this legislative programme is that for a number of years the UK Customs and Excise had direct access to airline reservations systems; but under the Data Protection Act this was illegal, though permitted through regulatory blindness.  Now the Government is putting this on statute, making a previously illegal activity legal.   And while the Government had powers to access much of this information previously on a case-to-case basis, now this information will be collected as a matter of routine, on all travellers and visitors to the UK.  All travellers and visitors will also be put through a profiling algorithm to discern whether or not they pose a threat as a smuggler, general criminal, or terrorist.

Extracts

Below we extract some of the relevant sections of the RIA.

Breadth of the Programme and Joining up policing: 

"In responding to these drivers, e-Borders seeks to move away from targeted use of the agencies’ passenger information powers, towards the routine and comprehensive capture of data, underpinned by the ‘single-window’ facility for carriers to provide passenger information to Government." (p.4)

"It is important, therefore, to recognise the complimentary nature of the e-Borders and wider Border Management Programme initiatives. Also to acknowledge the link with other Government initiatives, such as the e-Frontiers Programme. e-Frontiers aims to transform the HM Revenue & Customs' business capability for intelligence-led detection of prohibited and restricted cargo movements at UK frontiers by capturing data from carriers, storing it and allowing for both real-time targeting and historical data analysis to be carried out. 21. The majority of the data sharing gateways which currently exist were drawn up before the kind of integrated closer working now demanded of the Border Agencies by the Government under the auspices of e-Borders and the Border Management Programme. Most current statutory powers are designed to enable the agencies to obtain information from each other to fulfil their own, individual statutory functions. They do not envisage the Border Agencies participating in joint activities for the greater corporate good, including the joint analysis of carrier data to enhance border security in the wake of the prevailing levels of threat to UK homeland security." (p.6)

"Provisions should be introduced to enhance the data capture powers available to the Border Agencies and to provide for a duty of co-operation, placing an obligation on border agencies to share data." p.20

"A key element of the BMP is to ensure that data about passengers, crew and freight is captured efficiently by the Border Agencies and shared between them in support of operational activity. It will be necessary for each of the Border Agencies to acquire data under its own autonomous powers and thereafter to share the data." p.35

Purposes, from terrorism onwards

Unlike systems in other countries (that come nowhere near to collecting this much information), this system is not being restricted to combatting terrorism and serious crime.

"By 2010, we expect to see some 120 million people travelling to the UK each year. There are estimated to be 175m international migrants worldwide (more than doubled over the last 35 years), Europe is the major host area for them and human trafficking is a multi-billion dollar business1. Eliza Manningham-Buller, MI5 Director General has warned that the threat from international terrorism would be “with us for a good long time”. The cost to the UK of the terrorist attacks at Docklands, Bishopsgate and Manchester in the 1990s ran into hundreds of millions of pounds for each one. Throughout 2003 and early 2004, there was a catalogue of events which highlighted the danger to the UK and its partners. Lord Carlile who was appointed on 11 September 2001 to review the functioning of the Government's Terrorism Act and, later, the Anti-Terrorism, Crime and Security Act told Parliament that several aspects of security at ports and airports needed tightening. He stressed that the logging of passengers’ details recorded by airline and ferry operators should show consistency, recording names, addresses, dates of birth and passport numbers as a minimum and concluded, "It's impossible to provide a fool-proof system. But it should be a sieve with a finer mesh than we have got at the moment." Terry Byrne, then Director General of H M Customs & Excise Law Enforcement has emphasised that most modern smuggling is carried out by well-financed international groups, using ever more sophisticated methods and generating huge illegal wealth. He has said that, “We need a 21st century Customs service which can tackle the modern challenges of serious and large scale smuggling and security threats at the UK frontier." (p.4-5)

"The police’s current data acquisition powers are limited to passenger information only and restricted to port or border areas and the counter-terrorism context. Enhanced powers are required to improve border security and contribute to the effective operation of e-borders and the Border Management Programme. The powers will support to joint working with other Border Agencies in regard to the movement of people and goods involved in both terrorism and serious organised crime through the UK’s border and to support general police and criminal justice functions." (p.35)

"At present the Police are able to obtain from carriers some data for counter terrorism purposes. However this is not sufficient for the proportionate pursuit of their border control functions. Legal advice suggests that current data capture and sharing powers are not sufficiently robust to support fully integrated working under the BMP." p.35

"It is critical that the Police have the necessary capability and flexibility to respond to threats from terrorism and to counter serious and organised crime. At present the police only have powers to capture data under Sch 7 to the Terrorism Act 2000. The powers under this Act do not enable them to obtain information for serious and organised crime purposes, nor do they allow the capture of information in advance of a passenger travelling. In addition, the current legislation does not allow for the provision of bulk data.  Electronic access to a comprehensive range of data - in advance of travel - is critical in enabling the Police to respond quickly, effectively and proportionately to changing threats." p.36

Data Collection

This system will involve the collection of vast amounts of information on all travellers, including travel itineraries, methods of payment, menu choices and seating preferences, and all travels around the world.  This information will be kept for what the Government refers to as a 'reasonable'  and 'sufficient' period of time, though this is never expanded upon.

"On 29 March 2004 the Home Office published a consultation paper on organised crime: ‘One Step Ahead: 21st Century Strategy To Defeat Organised Criminals’ which recognised the need to ensure that the border agencies work together more effectively. The Border Agencies have been tasked with developing more closely aligned objectives and priorities and this work is being taken forward by the Border Management Programme, to ensure co-ordinated, strategically driven operational activity to protect our borders. A key area of this work involves traffic data capture and sharing, recognising that improvements here are fundamental to the ability of all the frontier agencies to identify and separate from the mass of legitimate traffic crossing our borders that which poses a risk. It makes sense, both for Government and for industry, for that data to be captured once and to then be made readily available for all frontier control purposes." (p.5)

"The value of passenger information is not confined to a single journey. In this respect, it is essential that law enforcement and intelligence agencies can retain passenger information for a sufficient period of time to achieve the aim of maintaining an effective border security capability. In the national security context, experience has taught that during the investigation following a terrorist incident the ability to historically track the movements of the suspected perpetrators or indeed attempt to identify them by reference to their travel is a vital investigative tool. As the terrorists may have entered the country a considerable time before the incident the retention of the data for a reasonable time is therefore necessary. In addition, for immigration control purposes the ability to refer to an audit trail of movements is key to risk assessing passengers. An audit trail of movements which illustrates a passenger's compliance will weigh in that passenger's favour while evidence of non-compliance will clearly attract closer examination by an immigration officer. We see these as fundamental building blocks for enhancing border security." (p.6)

"Whilst these powers are currently utilised to help fulfil the statutory functions of the Immigration Service, an extension to these powers is necessary to acquire further data that is required for the proportionate pursuit of Immigration Service functions. In particular, data is required in advance of travel and in an electronic format so that joint processing and analysis can be facilitated in an efficient manner by the three Border Agencies. The data elements concerned are those which are currently broadly available to the Border Agencies at the time of the passenger’s arrival in the UK. For example, the proposals to capture additional API data fields are confined to those that are recorded in the Machine Readable Zone (MRZ) of a passenger’s passport. We anticipate that this data will be gathered using an electronic reader. In respect of PNR information, much of this is already provided to the Immigration Service on a voluntary basis but this proposal seeks to make our powers in this area explicit so that we can gather this data on a systematic basis. No carrier will be compelled to provide any more PNR data than they gather routinely for their own commercial purposes."

Data Profiling

The data that is collected will be used to make decisions regarding all travellers, based on 'intelligence-led policing' to decide who is worthy of further scrutiny.  Carriers will also be expected to check names of travellers against un-named lists and databases, reminiscient of the problematic profiling and screening systems in the U.S.

Of course the Government argues that this will ignore issues of race and religions, but the data that is collected will necessarily include such information.

"The provision by carriers of advance passenger information (API) and passenger name record (PNR) or reservation data will allow more appropriate levels of inspection by the border agencies, geared to the perceived risk, allowing resources to be focused where most needed. An authority to carry (ATC) scheme will allow the Immigration Service to prevent specified categories of passenger from travelling to the UK by requiring carriers to request a check against government databases before departure."

"To provide HMRC with powers to make mandatory the provision of the passenger data (that they may already require under the aforementioned Commissioners Directions) in advance of the arrival of the means of transport.  This will allow sufficient time for the information to be used for profiling and targeting of individuals of potential interest, and allow time for a decision to be made as to whether an intervention is appropriate and for the resources to make such an intervention to be so directed."

"HMRC already enjoys extensive powers to require the provision of passenger data from air, sea and rail carriers. However, operational experience within the parameters of existing powers has demonstrated that they are insufficient to meet the rapidly shifting challenges posed by those attempting to smuggle drugs, drugs cash, child pornography, weapons and illicit excise goods across our border. Current HMRC powers allow for carriers to provide data not later than the time when a ship or aircraft “arrives” in the UK, but this is considered to be insufficient for HMRC to require the data to a pre-determined time in advance." p.25

"Through a combination of operational experience, specific intelligence and historical analysis, the Police build up pictures of suspect passengers or patterns of travel behaviour. These pictures and patterns typically share common indicators which are developed into profiles. Access to comprehensive passenger, crew and freight data in advance of a vessel’s arrival or departure in the United Kingdom will allow officers to assess the risk presented by the people or goods carried and to mount a proportionate response. Where this involves stopping or monitoring a person or goods through the port the use of advance traveller or freight data combined with existing intelligence systems will allow a targeted intervention, with an improved likelihood of a positive outcome." p.36

Biometrics Capture

The Government does note that each reader is likely to cost between 3000 to 5000 GBP and so will only slowly implement them at border points across the country.

"Many existing processes are ‘paper based’ and automation of functions will release staff for re-deployment to front line activities. There is the further opportunity to take advantage of new technology, such as biometrics, to enhance the robustness of border control processes.  In this context, the Immigration, Asylum and Nationality Bill contains provisions in addition to those examined in this RIA which would enable an Immigration Officer to require any arriving passenger to provide information of an external physical characteristic to verify their identity and confirm they are the rightful holder of that document." p.6

International 'Obligations'

"In addition to the drivers outlined above, there are a number of international trends which have influenced the development of the e-Borders proposal. The UK is not alone in its recognition of the benefits of passenger information. A number of countries, including Australia, the US and Canada already operate or are considering implementing e-Borders type proposals. Best Practice for utilising passenger information for law enforcement purposes is being considered at a number of international fora, including the International Civil Aviation Organisation (ICAO), the International Air Transport Association (IATA) and the G8. The introduction last year of the EU Directive on the obligation of carriers to communicate passenger data reflects the direction in which Member States are proceeding. The passenger information provisions contained in the Immigration and Asylum Act 1999 and the Passenger Information Order are consistent with this Directive. In addition, the European Council Declaration on Combating Terrorism, which was issued in March 2004, called upon the EU Commission to bring forward proposals for the use of passenger data for border and aviation security and other law enforcement purposes."

"Several other countries have introduced, will be or are considering introducing similar requirements. It is likely there will be a convergence of hardware requirements (e.g passport readers) as each state specifies its requirements to carriers. In this context the potential costs to industry may be overstated." p.12

Costs

The cost research on this proposal is more detailed than on the Identity Cards Bill, but equally problematic.  There is some consideration in charging travellers and visitors.

"e-Borders will initially be funded mainly from the Home Office/IND budget allocation and ongoing costs will be incorporated in the planned expenditure of the relevant agencies. In the medium to long-term it is forecast that the financial benefits for all the agencies involved will significantly outweigh expenditure. In addition work is underway to establish the practicality of charging passengers a small fee to cover costs." p.12

"Whilst we can provide some information at this stage it is important to note that no decisions have been made and we cannot therefore provide detailed or precise costs yet. It is also important to emphasise that no decision has yet been made on who will bear the burden of the financial costs involved but that we have always said that we will seek to reduce the impact on carriers to the fullest extent possible." p.14