By Leo Thüer, Alexander Fanta, Chris Köver. This blog was originally published in German on Netzpolitik website.
Since September 2017, the Federal Office for Asylum and Migration (of Germany) may analyze the mobile phones of refugees. This has already been criticized, for that the technology is far too expensive and the entire procedure may be unconstitutional. A first review of the new procedure by the (German) Ministry of Interior now reveals: the benefits are vanishingly small.
“Show me your phone and I’ll believe who you are.” This could be the slogan of the project with which the Federal Office for Asylum and Migration (BAMF) has been intruding into the privacy of asylum seekers since September 2017. Anyone who cannot provide identity documents has to hand in his/her mobile phone, tablet or laptop as part of the duty to cooperate. Who refuses, can be searched.
According to the federal government, the BAMF purchased devices and software for data readout in 2017 alone for 4.8 million euros. What use has it? The government has now commented on this for the first time in response to a question in parliament submitted by the party Die Linken (The Left). The short version: The suspicion that asylum seekers cheat on a large scale in concealing their identity cannot not be confirmed.
Federal Government: no relevant results in 2/3 of the cases
In the period from September 2017 to the end of May 2018, BAMF extracted data from mobile phones, pads or laptops of almost 15,000 persons unable to produce any identity papers. According to the Federal Government, country codes, contact details, called numbers or languages used in messages, and geodata were extracted from the devices and stored. The explanation given: “Geographical data may give hints on the nationality of the foreigner. However, no travel itineraries are being established. ”
BAMF officials are accessing this kind of information only if there are no other less intrusive means for establishing identity and citizenship, such as interviews. This procedure happened in about 5,000 cases. In approximately one third of these cases, the data supported the information provided by the applicants. However, according to the Federal Government, almost two-thirds “did not identify any relevant information content in terms of identity and origin.” In only around 100 cases did the data contradict what the person had stated initially. For comparison: In this period, about 230,000 asylum applications were decided.
Opposition: proceeding remains disproportionate
100 cases out of 230,000. This raises issues of proportionality that privacy advocates and critics of the “Law on Better Enforcement of the Duty to Depart” had posed even before the law was adopted. Furthermore, it has become clear now: The data from the telephones and laptops are copied not just when other means have been exhausted, but routinely already with the first contact of an asylum seeker with BAMF. Thus, it serves as backup, on which the decision makers may demand access later in the process. Under the law, a “person qualified to be a judge” must evaluate the data. However, in practice the investigation of equipment is rarely ordered or conducted by a judge.
“These figures underscore the disproportionate nature of this mass violation of the right to informational self-determination,” told Ulla Jelpke, spokeswoman for Die Linken, to netzpolitik.org. “The information made available on the search of mobile phones and document checks by BAMF disproves a wide-spread prejudice: Abuse or document falsification by asylum seekers on a significant scale cannot be confirmed.”
Right turn in Europe, Austria at the top
Germany is not alone on this. Other EU states also curtail the right to informational self-determination especially for those who are already vulnerable. The political wind is blowing to the right. In Austria, for example, only last week the new right-wing government tightened its asylum laws. In future, authorities will be able to read, store and evaluate all data carriers of refugees in order to establish identity and escape route. The mobile phones of asylum seekers can now be confiscated and searched at any time.
The Minister of the Interior Herbert Kickl emphasized before the adoption of the law, that its purpose was not the evaluation of text messages or alike but the ability to reconstruct the escape route via geodata. However, in reality the new law does not have this restriction: The text of the law and the associated explanation states that all devices carried along could be secured and “all data on the data carrier” evaluated. Thus, the executive gets practically a free hand for scanning refugees.
Experts think this is highly problematic. UNHCR misses in the regulation “important safeguards” for those affected. The UN refugee agency also argues that mobile phones often change owners when they flee and are used by several people – the reliability of the findings is, hence, doubtful. The Austrian Association of Judges also emphasized in a statement to the Parliament in Vienna that it had fundamental rights concerns about such actions. It didn’t help, the law was decided. For the 17th time since 2005, Austria imposed stricter asylum laws.
From “transparent refugees” to “transparent citizens”
It is to be expected that the surveillance fanatics of the New Right and those who run after them will continue to measure constitutionally with double standards. Soon another demand will be presented to increase the surveillance of refugees even further. According to this logic, BAMF simply needs more powers as demonstrated by the failure of the mobile phone data diagnostics.
Refugees are exposed to an even more threatening reality. In the face of more and more repressive measures, it is becoming more likely to fall into disgrace with the authorities. Anyone who is at least roughly aware of the procedures, of course, can get a new cell phone – but who already is under some kind of general suspicion, might be losing even more of his credibility. No authentic caller list, no asylum?
The distance is short between a “transparent refugee” and the “transparent citizen”. The right to privacy is a fundamental right, it also includes the right to ensure the confidentiality of one’s own devices, as stated by the Federal Constitutional Court. It must alarm everyone, if a particularly vulnerable group of people is now deprived of this fundamental right. The right to asylum should not serve as a test field to expand state surveillance.
About the authors:
Leo studied Political Science and Public Law in Berlin. After stopping at La Quadrature du Net, Digitale Gesellschaft e.V. and Ligue des droits de l ‘homme, he has been assisting the editors of netzpolitik.org as an intern. Interest in net neutrality, platform regulation, resistance in surveillance capitalism and more. Available at [email protected] (PGP). Now and then on Twitter.
Alexander has been a journalist at Netzpolitik.org since January 2018, where he writes about the digital society and its enemies. In 2017 he worked as a scholarship holder at the Reuters Institute for Journalism Research in Oxford and at the NZZ in Zurich with projects on AI in journalism. Before that, Alexander worked for the Austrian news agency APA. He can be reached at [email protected] (PGP) and @FantaAlexx.
Chris has been editor of Netzpolitik.org since the summer of 2018. She studied Cultural Studies and Computer Science and worked as author for Die Zeit, De: bug and Spiegel Online. From 2008 to 2014 she was the editor-in-chief of Missy Magazine, later she worked for WIRED Germany. Her topics: surveillance, social movements, net culture. Contact: [email protected], OpenPGP, Twitter