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“Border partnership”: The EU data protection officer also criticizes the planned police agreement with the USA
The European Data Protection Supervisor is calling for stricter limits on the exchange of sensitive police data with US authorities. The federal government is even keeping its negotiations on this in parliament secret
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The European Data Protection Supervisor is calling for stricter limits on the exchange of sensitive police data with US authorities. The federal government is even keeping its negotiations on this secret in parliament.
The European Data Protection Supervisor (EDPS) Wojciech Wiewiórowski has sharply criticized the planned framework agreement between the EU and the USA on read access to national police databases. In onehttps://www.edps.europa.eu/data-protection/our-work/publications/opinion...Statement published October 27thThe supervisory authority demands clear limits for the planned data exchange and warns against the mass transmission of biometric data.
The US government has made the conclusion of such an “Enhanced Border Security Partnership” a new condition for the Visa Waiver Program (VWP). More than 40 countries take part in this program, whose citizens are therefore allowed to enter the USA for up to 90 days without a visa; this agreement is mutual. Anyone who refuses to join the new “border partnership” risks being excluded from the VWP. The deadline for the framework agreement runs until the end of 2026. Individual governments – including Germany – must then conclude a more specific implementation agreement.
A draft for the sensitive data deal has now been negotiated. On September 10th, the European Commission published a draft ready to be signed, which is now available along with the annexhttps://eur-lex.europa.eu/legal-content/DE/TXT/HTML/?uri=CELEX:52026PC04...in German. Because of the deadline dictated by the USA, a two-pronged procedure is planned: After the framework agreement has been signed by the EU states and the US government, it should be applied provisionally immediately. The democratic legitimacy with the approval of the European Parliament should then be achieved, that's what there is forhttps://eur-lex.europa.eu/legal-content/DE/TXT/HTML/?uri=CELEX:52026PC04...draft with the same content.
Reasons for queries are vague
The final version contains changes compared to an earlier draft. A US query in European databases should therefore only be possible with alphanumeric personal data or fingerprints, no longer with a facial image. The subsequent response to the US authorities can then also contain biometric photographs.
According to the US side, data access is intended primarily for identity verification and security screening of travelers during border procedures and visa applications. The agreement allows searches if there is “reason to believe” that a person’s entry or stay poses a “serious and real threat to public safety or public order.” Wiewiórowski urges that this term be interpreted narrowly. “Public order” is not uniformly defined in EU law and can include both criminal offenses and administrative offenses.
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The broad scope of the purposes in the current draft also grants the US access to prosecute serious crime and terrorist offenses. Even if the “border partnership” is not aimed directly at this, it would be possible within this framework to investigate left-wing movements in Germany: last year, the US President and his government classified, among other things, the German “Antifa Ost” and its alleged members or supporters as a “foreign terrorist organization” and are pursuing the persecution of left-wing groupshttps://www.nd-aktuell.de/artikel/1203204.internationale-repression-us-a...worldwide.
No independent oversight
The fact that the fear of political persecution with the help of the “border partnership” is not far-fetched is also shown in the formulation of “trend analyzes” of suspicious activities, on the basis of which a US query in German police data is likely to be carried out. The EDPS sees this as a danger of dragnet searches based on behavioral patterns. These could lead to profiling and unjustified unequal treatment, says Wiewiórowski.
The EDPS is demanding more transparency for the first automated comparison, in which fingerprints are also transmitted. The inquiring authority should at least state what the suspicion relates to. In addition, access should only be limited to national databases of individual states. This often includes data sets from large EU platforms such as the Schengen Information System (SIS), the Visa Information System (VIS) or the European Travel Information and Authorization System (ETIAS). An indirect transfer of this data from EU systems to US authorities must be ruled out, demands Wiewiórowski.
The EDPS also criticizes a vulnerability that data protection activist Max Schrems has already pointed outhttps://netzpolitik.org/2026/erzwungene-borderpartnerschaft-vertrag-zum-...via netzpolitik.org: The draft framework agreement stipulates that the states and the USA appoint mutually independent supervisory bodies. For the USA, however, it remains unclear which authorities should take on this task. There are no independent bodies in the USA, as are common in the EU. In the agreement, the EU Commission is apparently satisfied with internal departments of the US immigration authorities.
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Federal government remains silent about negotiations
Wiewiórowski also points out that the mere presence of data in any European police file should not be taken as an indication for further action. Because not only the accused are often stored there, but also witnesses and victims. This is also the case with the German police information system (INPOL). This file, which is maintained by the Federal Criminal Police Office for all federal states, will probably be opened in the German-American implementation agreement for the “border partnership”.
On the German side, the Federal Ministry of the Interior is responsible for the bilateral implementation agreement. Given the time pressure, the authority led by Alexander Dobrindt (CSU) does not want to say how it is preparing for the negotiations that will be concluded this year. In response to a press inquiryhttps://www.nd-aktuell.de/artikel/1202072.borderpartnerschaft-ice-amp-co-...the ministry only, the government is currently taking all necessary steps.
The Foreign Office under Johann Wadephul (CDU), which would have to be involved at the latest when a final draft implementation agreement is signed, did not want to respond at all in terms of content. A parliamentary question from MP Clara Bünger (Die Linke) was also not answered with reference to the “core area of executive responsibility”.
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