Space: The Final Frontier of Europe’s Migrant Surveillance 

HawkEye Marketing Material, March 2021, available here.

United Kingdom

In the UK, Horizon Technologies, part-funded by the UK government, is scheduled to launch a satellite later in 2021 and aims to serve the UK as well as foreign customers. Based on its signals tracking technology, FlyingFish, used by Frontex and other agencies on airplanes to monitor satellite phones, it will carry out a similar function from space. FlyingFish can also locate GSM (mobile) phones, at a range in excess of 35km, according to Horizon.

According to the company’s marketing, the company’s satellite can not only provide to its customers the geolocation of emitters, such as satellite phones, but can also identify the user of the satellite phone by collecting call metadata and in some cases even intercept the content of conversations.

Horizon Marketing Material, July 2021, available here

Horizon is due to provide data to the UK’s National Maritime Information Centre (NMIC), a body that brings together maritime information and intelligence from across government departments and agencies, which will in turn ultimately be fed to other UK government and law enforcement agencies. 

Speaking to iNews, a Home Office spokesperson said that “When fully operational this will supplement our existing technology, and should allow Border Force and other agencies to have additional data to enhance their operations.” 

The Journal of Electromagnetic Dominance reports that Horizon will also then sell access to the data to “friendly” countries in raw form.

What’s the Problem?

European Union

Satellite phones are life-saving devices which are used regularly by people in distress on boats in the Mediterranean to alert authorities and NGOs to receive help. Signals such as those emitted by ships’ automatic identification system (AIS) transmitters are also used to locate vessels in search and rescue operations. So in theory, being able to locate these signals will save lives. 

However, such surveillance may also be used to facilitate the return of migrants in the Mediterranean to countries from which they have embarked, in operations known as ‘pull backs’. ‘Pull backs’ are a proxy-strategy where actors such as the so-called Libyan Coastguard intercept migrant boats and return them to Libya in an effort to reduce the number of arrivals to EU borders – ensuring that EU countries, like Italy, appear to act in accordance with their international law obligations.

As noted by the Council of Europe’s Commissioner for Human Rights Dunja Mijatović in a scathing 2021 report on migrant protection in the Mediterranean, which found “a widespread unwillingness of European states to set up an adequate system of protection”, a recent shift to aerial surveillance has in fact created further risks.

While over 35,000 refugees and migrants were rescued by the EU military mission Sophia in the central Mediterranean between January 2016 and July 2018, the shift to aerial surveillance has meant that no military ship has since carried out any rescue operations. Instead, according to the report, information gathered by ‘airplanes, drones, and satellites’ is being shared with authorities, including those in Libya. 

Using this information, it is then possible for the EU-trained and funded Libyan so-called Coastguard to intercept people and return them to Libya: indeed, the Council of Europe’s human rights leader noted that “this information seems to be particularly conducive towards further interceptions and returns by the Libyan Coast Guard to unsafe ports, contrary to international maritime and human rights law”. 

Under international law, state authorities are prohibited from returning asylum seekers to destinations where they are unsafe, including to Libya where according to Amnesty International migrants have suffered or witnessed enforced disappearances, torture, and rape ‘in a climate of near-total impunity’.

In response to a parliamentary question, the European Commission confirmed in 2020 that between 2017 up to 20 November 2019 the Eurosur Fusion Service – the service in which satellite data is processed - had provided information on distress situations to the Libyan authorities 42 times.

Relying on radio audio picked up by a ship on the Med, in March 2020 the Guardian revealed that an EU naval plane was actively instructing the Libyan coastguard on how to find two small boats which it had spotted, going as far as hovering over a rubber boat in the hope they would be spotted by the Libyan vessel. Citing letters between high-level EU officials, inside sources and emails from the Libyan Coastguard, the Guardian reports that far from being an isolated incident, the attempt was ‘an illustration of the painstaking lengths to which Europe has gone to ensure migrants do not reach the continent.’

Further, between 31 March and 21 July 2020, the EU mission had provided information gathered by aerial assets to the so-called Libyan Coast Guard on such vessels at least eight times, according to EU foreign policy chief Josep Borrell, who was responding to a question MEP Özlem Demirel. 
 
The EU’s border agency, Frontex, refused to directly answer specific questions relating to the use of Hawkeye 360, FlyingFish, or the procurement and award of the new €5 million contract by Frontex. Citing that revealing such information would “benefit criminal networks”, the agency also refused to disclose which departments use the tools, who has access to intelligence derived from the collected data, or how GPS geo-location is governed. 

For now, Frontex has said that such surveillance is not being operationally used, despite finalising their first contract with Hawkeye in 2019 and committing a further €5 million in 2020 on the same services, and having a contract for FlyingFish since at least 2017. According to Frontex, “[t]hese activities are carried out in form of pilot projects and the operational added value is still under assessment. No data has been analysed operationally (only qualitatively) nor shared with Member States or Third Countries.” 

United Kingdom

In the UK, the addition of satellite-based surveillance powers made available to border and law enforcement agencies poses similar threats. 

First, it is not known how these powers are to be regulated: whether the authorities will need judicial authorisation before accessing intercepted signals, how these intercepts will be accessed and by who, how long the signals will be retained, and the programme will be overseen to ensure against abuses. Horizon Technologies did not respond to Privacy International’s inquiries.

The second issue is that it could facilitate the monitoring and prosecution of asylum seekers in the UK given the conflation by the Home Office of people seeking asylum and people smugglers. Indeed, documents seen by iNews show that the data will be used to monitor “people smuggling across the English Channel”.

Authorities already use aerial assets such as drones to prosecute asylum seekers and others under the guise of tackling ‘people smugglers’. Between June and September 2020, for example, Sky reports that evidence gathered by drones was used to charge 22 people for people trafficking.

However, many of these prosecutions are highly dubious given that at the time anyone could be charged with assisting unlawful immigration if they just happen to be steering a small boat. Under such rules anyone doing so, including potential asylum seekers, could have faced imprisonment for up to 14 years.

Since then, the UK’s Crown Prosecution Service (CPS) has issued guidance on the issue following a pre-legal action letter from The Joint Council for the Welfare of Immigrants (JCWI), which clarified that people on boats whose intention is to claim asylum would not be considered to be in breach of immigration law.  

However, as outlined by JCWI, the UK’s Nationality and Borders Bill currently making its way through the UK’s parliament seeks to again criminalise such journeys by introducing sentences for irregular entry, in direct conflict with the CPS guidance. If the Bill proceeds without amendment therefore, evidence from satellites could presumably be used to prosecute asylum seekers in the same way as evidence from drones. 

Human lives must come first 

Satellite phones and other devices can be used to save lives, but it is clear that they can also be used to ultimately endanger them. Although companies and government agencies can point to incidents where surveillance of radio signals has been used to locate and save people, the fact that such surveillance has replaced vessel-based search and rescue missions and can be used to prosecute asylum seekers demonstrates that it is ultimately being used not to save lives, but to keep people from reaching the EU’s and UK’s shores. 

The Missing Migrants projects has as of July already recorded 993 deaths in the Mediterranean in 2021; each number a person who’s life could have been saved.

Instead of relying on costly space-based surveillance and the cooperation of a state militia involved in human rights abuses, the humanitarian priority must be to ensure there exist safe passages which mean that people do not have to risk their lives undertaking dangerous journeys in the first place. 

Technological solutionism only serves to mask the urgent political decisions needed to ensure states live up to their legal and moral obligations.

Horizon Technologies did not provide comment or any answers to Privacy International’s inquiries. The full list of questions posed to Frontex and their response is attached to this page.