Europe’s Digital Border Wars: How the EU’s Facilitation Package is Another Step in Europol’s Unjustified Power Expansion

Guest post by Antonella Napolitano and Hope Barker. Antonella is an expert on technology policies and their impact on society, particularly on migration and welfare. She currently works with public interest newsrooms and human rights organizations. In 2023 she published a report titled “Artificial Intelligence: the new frontier of the EU's border externalization strategy” for the NGO EuromedRights. Previously, she was Senior Policy Officer at Privacy International, where she developed the organization's work on migration and surveillance technologies. Hope is an independent researcher focussing on the role of technology in rights violations at EU borders, and the weaponisation of nature in EU ‘migration management’ policies. Previously, she worked as the Senior Policy Analyst for the Border Violence Monitoring Network where she worked closely on EU migration policy and its implementation in member states at the external borders of the bloc.

In July 2024, the re-elected president of the European Commission, Ursula von der Leyen, promised to “more than double” the staff of Europol, the EU policing agency, in order to respond to a “growing threat” in Europe. 

The threat?

“Organised criminal networks… causing fear and innocent peoples’ deaths with their brutal violence,” said von der Leyen. “They earn enormous amounts of money from drug trafficking, ransomware, fraud, trafficking in human beings and they are not limited by national borders.”

Since strengthening Europol means encroaching on EU member states’ own policing powers, von der Leyen made sure to appeal to those countries’ interests: “We will act to ensure that migrants are not exploited in our labour market,” said von der Leyen in her speech. “We will disrupt and prosecute the perpetrators, using a ‘follow the money’ approach to tackle illegal profits.”

There’s no doubt that much of this new investment will go towards Europol’s counter-smuggling efforts online, with 50 million euros set to be added to the budget. While the policing agency has been seeking to monitor online content since 2016, they recently stepped up their efforts. In April 2024, the first thematic meeting of “tackling migrant smuggling in the digital domain” was hosted by Europol and in June the Spanish National Police hosted the European Migrant Smuggling Centre’s Annual Conference in Madrid where exchanging good practices and difficulties in the digital dimension of the “fight against migrant smuggling” was a key priority. 

This follows the publication (in November 2023) of a package consisting of a directive on “preventing and countering the facilitation of unauthorised entry, transit and stay in the EU.” This regulation was to reinforce Europol’s role in the fight against smuggling and trafficking in human beings, and a “Global Alliance to Counter Migrant Smuggling.” Neither of the legislative proposals were part of the Commission's 2023 work plan, and no legislative initiative had been foreseen in the EU action plan against migrant smuggling covering the years 2021-2025.  

The new regulation would additionally consolidate the collaboration between Europol and Frontex, the EU’s Border and Coast Guard Agency, and would bolster powers of both agencies in third countries, expanding the EU’s border externalisation strategy. Frontex is legally prohibited from collecting personal data about all migrants for law enforcement purposes and transferring the information to Europol. However, a Europol deployment to assist Frontex on the ground could potentially circumvent this, especially with the new data-mining powers of the 2022 mandate. 

The partnership, however, has already proven extremely problematic in the past: in 2021, it was revealed that Frontex and Europol had attempted to circumvent regulations and the role of the EU’s own data protection watchdog in the use of a data collection programme called PeDRA, or “Processing of Personal Data for Risk Analysis,” a much-criticised expansion of “intrusive” data collection from migrants and refugees to feed into Europol’s vast criminal databases.

A Power Grab That Defies Oversight

Europol’s powers have been consistently bolstered since its establishment as an EU body, with two substantial reforms in 2016 and 2022. The 2023 Facilitator’s Package is just the latest step in Europol’s resource-grab and power expansion. Today the agency’s role in cross-border police activities and big operations has an increasing focus on information collection and processing, which contributes to anchoring a data-driven model of policing in Europe. 

According to a report by civil society organisation Statewatch (based on numbers of the European Court of Auditors), the usage of Europol’s systems has grown enormously both in terms of stored data and of searches in the Europol Information System (EIS). Indeed, the latter is increasing at a rate far quicker than the amount of data it holds, with the number of searches in the EIS going up by 753% between 2016 and 2021. 

The report also notes that the 2022 reform that expanded Europol’s powers will allow Europol to process vast quantities of data on people who may have no link whatsoever to any criminal activity. The effect will be to legalise another activity that previously had been deemed illegal by the European Data Protection Supervisor, the EU privacy watchdog.

Back in 2020, in fact, the European Data Protection Supervisor conducted an inquiry on Europol’s big data challenge, i.e. the processing by Europol of “large datasets” received as contributions from member states and other operational partners or collected in the context of open source intelligence activities. It led to the finding that Europol was unlawfully collecting and storing massive amounts of data, posing serious risks to people. “Data subjects run the risk of wrongfully being linked to a criminal activity across the EU, with all of the potential damage for their personal and family life, freedom of movement and occupation that this entails” wrote the EU data protection watchdog in the decision. Reportedly, in January 2022, Europol was ordered by the EDPS to delete the vast store of personal data that it had been found to have amassed unlawfully. 

But the law enforcement agency’s efforts were not deterred. While the 2022 reform granting more powers was being approved behind closed doors, Europol was also requesting unfiltered access to data that would be harvested under a controversial EU proposal to scan online content for child sexual abuse images, and for the AI technology behind it to be applied to other crimes.

Pursuing policing – against all evidence

EU institutions are increasingly conflating the concept of public safety with police, borders, and the military. In turn, the social, human phenomenon of mobility is framed almost exclusively as a security threat, as are the people involved. And AI and digital technology are promoted as the ‘solution’. 

The Commission's fight against “migrant smuggling” has been fuelling an anti-migrant policy frenzy - and the racist, anti-migrant violence that often follows. It also provides a veneer of rights-based discourse, while simultaneously working to strip migrants and undocumented people of their fundamental rights.

Most recently, a joint United Nations report found that “smugglers” are not the main perpetrators of violence towards people migrating along the central Mediterranean route to Europe. On the contrary, law enforcement authorities, including police, military, immigration officers, border guards and government officials bear the primary responsibility for violence committed on migration routes.

Despite this and many other studies, the EU has doubled down on violent “solutions” to irregular migration.  

In a normal policy cycle, an issue is identified, research is conducted as to how best to address the issue, a policy is formulated, adopted, monitored, evaluated and changed according to the impact of real-world implementation. But when it comes to the EU’s counter-smuggling policies, and migration policies more generally, the process is often disregarded and impact evidence ignored or selectively used. The “Facilitator’s Package” is more of the same.