The screening of asylum seekers’ smartphones at the Dutch border
Smartphones and other data carriers have been examined manually by border control officers since 2014 as part of the inspection of asylum seekers' luggage. The software-based extraction and analysis of smartphone data has been started after the so-called 'European refugee crisis' and the attacks in Paris in 2015 in the Netherlands and elsewhere in Europe.
In the Main Lines Agreement (Hoofdlijnenakkoord) between the PVV, VVD, NSC and BBB factions, “reading mobile phones” (p.4) is mentioned as a measure to “limit” the “influx of asylum seekers”. This was further elaborated in the recent Government Programme (Regeerprogramma) where it is stated that as part of the reversal of the burden of proof from immigration services to asylum seekers the possibilities for the immigration services (IND) “to refute this [asylum seeker claims] are expanded, including by making it possible to screen (uitlezen) telephones and other data carriers.”. It is additionally made explicit that the screening will “also concerns location data” (p. 21).
Multidisciplinary research team
A multidisciplinary team of UU researchers (Kinan Alajak and Koen Leurs, Faculty of Humanities; Rianne Dekker, Faculty of Law, Economics, Governance and Organization and Albert Ali Salah, Faculty of Science) investigated the screening, data-extraction and examination of smartphones of asylum seekers at the start of the asylum procedure between January 2022 and September 2023, and the findings remain relevant till today.
By means of Open Government Act (WOO) requests and 21 in-depth interviews, they analyzed the screening of smartphones from the perspective of people going through the asylum procedure, the immigration police (AVIM), the IND, refugee work, asylum lawyers and human rights organizations such as Privacy International and Amnesty International.
Ineffective
In a recent open access article published in Forced Migration Review (also available in French, Spanish and Arabic) the team presented their findings and compared them with the situation in Germany. The aim of this screening process is to establish the identity of asylum seekers and to avert threats to national security (terrorism) and human trafficking. However, in pursuing these goals this approach appears to be ineffective. For example, in 2021, from the automated screening an estimated 23% of smartphones of asylum applicants there were 20 'signals' reported, but not a single criminal investigation was initiated, and no one was prosecuted. Smartphones increasingly contain terabytes of data. The creators of this data cannot be clearly identified. Misinterpretation due to the lack of contextual information and explanation about the messages, contacts, photos, videos, apps, geographical data and videos viewed to be analyzed poses a major risk, particularly in a context of refugee migration where people share devices , make use of second hand devices and change SIM-cards more frequently and where storing data might pose a risk to one's personal safety (see Georgiou & Leurs, 2022, Lunau & Andreassen, 2022, Smets, 2017, Zijlstra & Van Liempt, 2017).
In practice, it also appears that many asylum seekers sacrifice or hide their phones out of ignorance and fear, or delete data, including for example contact details of relatives or photos of deceased loved ones. All this because it is currently policy that asylum applicants are not informed about the process and purpose of reading smartphones. When officials notice applicants do not come with devices to their Identity and Registration appointment or their data appears altered or missing these should not be interpreted as grounds for suspicion per se, rather they must be understood as symptomatic of an unfair system where applicants have made ad-hoc decisions based on a lack of information.
Unlawful
Besides being ineffective, automated examination of data carriers is a significant restriction of the rights of asylum seekers. The Dutch Council of State has ruled that there is no legal basis for unlocking and searching smartphones without the consent of asylum seekers. The Council of State has also advised that when authorities want to continue legislation should be amended to define more precisely for which purposes the data from smartphones is collected and how long it can be stored. Evelien Brouwer (Law, UU) argues that screening data carriers of asylum seekers does not comply with their right to private life and data protection as outlined in Article 8 of the European Convention on Human Rights (ECHR) and Articles 7 and 8 of the EU Charter of Fundamental Rights.
Advice: voluntary basis, information provision.
The research team advises that asylum seekers should be better informed about the purpose and process of reading data carriers at the start of the asylum procedure and that asylum seekers should be given freedom to decide which data is extracted for which purpose. The advice is to separate the extraction and software-based analysis of data in line with specific objectives: supporting/refuting an applicants’ asylum claim, and for example detecting threats to national security or human smugglers. Moreover, the examination of smartphone data to verify asylum claims should incorporate additional safeguards to acknowledge substantial risks of drawing false conclusions on the basis of missing data, incorrect data that does not correspond to the owner of the device and/or as well as misinterpretation of data.
Asylum applicants should also be given the opportunity to place their data in the right context to prevent the use of isolated datapoints from smartphones being used to ‘stand in’ and speak for a person. This approach would better respect their rights and prevent incorrect conclusions based on algorithmic analyses. Also, indicators on risk such as not bringing your phone or having a changed digital phone archive should be considered more carefully as risk indicators.
Next steps
Some of the recommendations mentioned above have now also been included in the Report fundamental reorientation asylum chain “Building blocks for asylum policy & asylum system” drawn up for the Ministry of the Interior and Kingdom Relations.
Besides the article publication in Forced Migration Review, our article titled “Encountering the digital border: Smartphone screening in the asylum procedure in the Netherlands” is accepted for publication in the Journal of Ethnic & Migration Studies, in a special issue titled Digital Technologies and Migration: Behind and Beyond the Black Box, Edited by Marie Godin, Rachel Humphris and Derya Ozkul. Other publications will follow. Please check the research projects’ website for the latest updates: https://fairdigitalasylum.sites.uu.nl/
In order to contribute to closing the information gap asylum applicants experience, the team is currently developing animation video explainer with stakeholders, recorded in 9 different languages, which will be published on the Refugeehelp website of Vluchtelingenwerk Nederland. In an accessible manner, this video informs asylum seekers of the screening procedure, what type of data their phones might have, as well as the rules and obligations that both applicants and policy must adhere to.
Funding
The Co-desiging a fair digital asylum research project was made possible by funding from COMMIT/, a public-private ICT research community and the Digital Society program, Universities of the Netherlands; the UU Public Engagement fund; the focus area Governing the Digital Society (GDS) and the GDS Special Interest Group Digital Migration.