Camera system @MIGO-BORAS under scrutiny at United Nations

This week (18-19 August next), the Netherlands will be scrutinised in Geneva by the UN Committee against Racial Discrimination. A wide range of issues will be critically assessed by the Committee in the process. To provide the Committee with the necessary information, a national coalition of civil society organisations/NGOs (led by the Dutch Lawyers Committee for Human Rights) submitted a so-called shadow report on the Netherlands to the Committee. On Privacy First's initiative, this report also brought the border control system @MIGO-BORAS to the Committee's attention. Click HERE for the entire English-language report in pdf; the passage on @MIGO-BORAS can be found on p. 26. The relevant text is reproduced in full below.

Privacy First hopes that the Committee in Geneva will critically question the Dutch government delegation and demand clarification, openness and improvement of its policy around @MIGO-BORAS. In doing so, the Committee's final opinion ("Concluding Observations"), while not binding, is highly authoritative for the Netherlands' compliance with the UN Convention against Racial Discrimination. After all, the Committee is the monitoring body of this Convention and as such the highest body in the world to adjudicate on this matter. More information on the Dutch session at the Committee can be found at HERE. The session will be viewable via http://www.treatybodywebcast.org (Tuesday 18 August, 3pm-6pm & Wednesday 19 August, 10am-1pm).

Comment with regard to Article 5(D)(I) of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD)

@MIGO-BORAS (automatic border control)

In 2011, it became clear that the Dutch government had been planning to implement a highly privacy-invasive system of border control for years.[134] The new high-tech camera surveillance system, called @MIGO-BORAS, was due to become operational from January 1, 2012.[135] @MIGO-BORAS intended to photograph, screen and profile every vehicle crossing the Dutch-German or Dutch-Belgian border with the help of various (unknown) databases. In October 2011, the European Commission - under German pressure - started an investigation to assess whether @MIGO-BORAS complied with European Schengen and privacy regulations.[136] Consequently, the Dutch government scaled back the planned operational use of the system: instead of @MIGO-BORAS being operational 24/7, it was made operational up to six hours per day or 90 hours per month. After the European Commission provisionally concluded that the system did not contravene the rules that govern the EU's Schengen area in June 2012, @MIGO-BORAS was launched officially on August 1, 2012.[137]

The primary goals of the project are the detection of illegal immigration, human trafficking, identity fraud and narcotics control through camera surveillance and profiling. Critical profiling factors include the type and colour of the vehicle, the number plate and country or region of origin.[138] Since April 2013, the @MIGO-BORAS camera system is also being used for law enforcement and criminal investigation purposes (including counter-terrorism) through Automatic Number Plate Recognition (ANPR).[139] However, many details of @MIGO-BORAS still remain confidential. No specific legislation around its implementation has been drafted and the Dutch Parliament has asked relatively few questions about the project. As far as the Dutch NGOs are currently aware, participating organizations include the Royal Military and Border Police (Royal Military Police), the Dutch National Police, the Public Prosecution Service, the General Intelligence and Security Service (General Intelligence and Security Service or AIVD) and the Netherlands Organisation for Applied Scientific Research ('TNO').

Reports show that the (effect of the) use of @MIGO-BORAS is likely to be discriminatory, as nationality seems to be a primary profiling criterion and most vehicles being stopped and searched originate from Eastern Europe.[140]

The NGOs request the Committee to urge the Netherlands to clarify the mandate, use and effects of the @MIGO-BORAS surveillance system and to introduce adequate legislation or guidelines to prevent the system from being used in a discriminatory manner or having discriminatory effects.

[134] See D. Tokmetzis, State builds digital fences at borders, Sargasso, 19 January 2011, sargasso.co.uk/archive/2011/01/19/state-builds-digital-fences-on-the-borders/; see also a summary of B. de Konings' subsequent speech at the CPDP Conference in Brussels, 26 January 2011, njcm.co.uk/site/newsposts/show/273.
[135] The Dutch/English acronym @MIGO-BORAS stands for 'Automatic Mobile Information Controlled Action' (Automatic Mobile Information-Driven Action) - Better Operational Results and Advanced Security.
[136] See e.g. 'Utility of new camera system along borders not proven', NRC Handelsblad, 31 October 2011, nrc.co.uk/news/2011/10/31/nut-of-new-camera-system-along-the-borders-not-proven/; 'Germany angry over border cameras', NOS, 30 November 2011, nos.co.uk/article/318196-germany-angry-over-border-cameras.html.
[137] See Parliamentary Papers II 2011/12, 32 317, no. 128; Parliamentary Papers II, 2012/13, 33 400-VII, no. 4, para. 247. See also 'Brussels defends Dutch border control project', EU Observer, 5 July 2012, euobserver.com/justice/116881.
[138] See e.g. Ministry of Security and Justice, Factsheet on the use of the @MIGO-BORAS system, 7 July 2012, government.co.uk/documents-and-publications/leaflets/2012/07/11/factsheet-on-the-use-of-the-amigo-boras-system.html.
[139] Parliamentary Papers II 2012/13, 19 637, no. 1647; Parliamentary Papers II, 2012/13, 29 754, no. 232; Parliamentary Papers II, 2013/14, 19 637, no. 1760; Parliamentary Papers II, 2013/14, 28 684, no. 411.
[140] See e.g. 'A Romanian Volvo for you', Volkskrant, 24 August 2012; volkskrant.nl/vk/en/2844/Archive/archive/article/detail/3305474/2012/08/24/An-Roman-Volvo-for-you.dhtml ; 'Leers: border control a model for Europe', Telegraph, 23 August 2012, telegraph.co.uk/domestic/article20960146.ece; 'Not border control, but surveillance', Stentor, 24 August 2012, destentor.co.uk/2.2545/domestic/no-boundary-guard-march-1.900394; 'Camera system @migoboras makes checks more efficient', Gelderlander, 16 March 2013; 'Grenzpolizei!', Reformatory newspaper, 30 August 2014. See also Meijers Committee (standing committee of experts on international immigration, refugee and criminal law), Note on the Dutch surveillance system @migoboras (CM1208), 2 April 2012, p. 4, committee-meijers.co.uk/committee-meijers/page.asp?pagkey=149205, also available at http://www.statewatch.org/news/2012/apr/netherlands-meijers-cttee-surveiilance-system.pdf.

Update 28 August 2015: partly in response to the above input, the Committee today issued the following general recommendation to the Dutch government: "The Committee recommends that the State party adopt the necessary measures to ensure that stop and search powers are not exercised in a discriminatory manner, and monitor compliance with such measures." Click HERE for the entire document in pdf (Concluding Observations, para 14b.) Privacy First trusts that this advice will be followed by the Dutch government (including Royal Netherlands Marechaussee) and that the operation of the @MIGO-BORAS camera system will be adjusted accordingly.