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16.04.2009

UHHRU Open Appeal against collection of biometric data

   

On 14 April 2009 the Verkhovna Rada adopted amendments to the Law “On the legal status of foreign nationals and stateless persons” which allows for the collection by all Ukrainian consulates and diplomatic offices of biometric data when issuing visas, as well as by border guards at the State border. This procedure is to be introduced from 1 January 2010.

The Ukrainian Helsinki Human Rights Union is calling on the President to use his power of veto against this law, since it:

-          violates fundamental human rights;

-          will involve considerable expense from the State Budget without clear justification of the need and efficacy of such measures;

-          does not achieve its declared purpose, of increasing national security.

 

Violation of fundamental human rights

The collection of biometric data is a flagrant and disproportionate restriction of civic rights, in particular the right to privacy, guaranteed by numerous international agreements to which Ukraine is a party.

Ukraine lacks personal data protection both at legislative level, and in practice. Databases with personal information are freely sold at city markets and on the Internet. This law would mean that biometric data about foreign nationals could also become accessible.

Ukraine has not ratified the Council of Europe Convention No. 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981) which establishes the proper safeguards in this area.

The European Court of Human Rights has on many occasions noted that the collection, processing and use of personal data without proper guarantees of their protection, as set down, for example, in Convention No. 108, is an unequivocal violation of Article 8 of the European Convention on Human Rights.

In the EU which is planning to introduce such collection, the USA, Japan and other countries, the collection of biometric data is taking place against the background of many years’ experience of effective legislative and administrative practice with personal data which does not exist in Ukraine.

There is thus the likelihood of an increase in applications from foreign nationals to the European Court of Human Rights against Ukraine, as well as the possibility of other adverse impact on relations with other countries as a result of mass leakage of information with biometric data about their nationals.

It is clear that when biometric data (fingerprints, etc) of a well-known foreign national end up freely sold in Ukraine that this can be of interest to criminals which will not pass unnoticed.

The introduction of discriminatory procedure for treatment of all foreign nationals as though they are criminals will certainly not make our country more attractive to the thousands of tourists and businesspeople who come to Ukraine.  This is especially strange to observe before the holding of EURO-2012”., especially since the authorities cannot guarantee the security and protection of this data.

The introduction of this system would obviously slow down movement of people at the border and significantly increase queues at passport control.

 

Considerable expense from the State Budget without clear justification of the need and efficacy of such measures

At present collection of biometric data is not mandatory in international law, and remains the internal matter of each country.

The draft law was passed in haste without discussion, proper assessment of the consequences. Parliament immediately passed it in its first and second, final reading.

Such hasty procedure for sending 12.5 million UAH of public money which also flagrantly violates human rights, cannot fail to be of concern.

This financial estimate is, moreover, excessively superficially since the real cost of the plan have not been calculated, with the cost of such equipment for each diplomatic mission, border point and a central server, not being taken into account. Other costs not considered include training, maintaining the equipment, holding and processing the information, and many other expenses. The USA has already spent over 1.7 billion USD on such a system.

One feels that the given draft law was more likely designed to meet the economic interests of a specific enterprise which will supply the equipment, than the country’s interests. This is despite the fact that these interests will be met from public funding. The State is already dependent on one private enterprise which deals with the preparation of passports and this law will only increase such dependence. This can only place national security in jeopardy.

 

No increase to national security
Introduction of a system of collecting biometric data is an ill-considered move copying the most ineffective experience of certain countries which will not achieve its stated aim, that being to ensure national security. The practice of countries which have brought in analogous systems shows that there are many other more effective methods for identifying criminals at the border (for example, checking the passport against the Interpol database).

The proposed measures remains of little benefit due, for example, to its unreliability, vulnerability to interference from outside individuals and many other factors.

The assessment, for example, by the US Government of its system US-VISIT showed that:

-          after spending 1.3 billion USD only half of the system was launched during the next 4 years;

-          spending continues on the project, with this being “not clearly stipulated, planned or justified in terms of the cost, possible achievements and risks”

-          the government is continuing to finance the system without it being linked with border and migration policy;

-          control over determining computer and software-related risks was inadequate which prompted serious operational, technical and managerial challenges;

-          poor security increases the risk of unauthorized reading, copying, destruction, addition or modification of sensitive personal data

According to the Head of the Senate Committee on National Security, D. Lieberman, the US Government “spent 1.7 billion dollars of taxpayers’ money on a programme for identifying potential terrorists at the border, yet did not take security measures to protect this sensitive information from them” which renders meaningless the efficiency of this system against international criminals and terrorist groups.

It is therefore no surprise that there are frequent hiccups in the work of this system in the USA which leads to the suspension of the work of airports and other forms of transport because foreign nationals cannot be admitted.

There are similar problems in the EU although only in planning collection of biometric data.

Clearly problems and expense for Ukraine in introducing such a system will be no less, and probably considerably more given a badly prepared infrastructure. And the risks are also much greater.

It is also clear that if the Ukrainian State databases are unprotected and freely sold then the biometric data in them will not be difficult to copy, add to, destroy or change where needed, especially if one is talking of organized crime and terrorism. In other words this system is so sensitive with such a huge number of users, that it cannot serve as an effective barrier for protecting national security, and will be only a means of control over people, and create problems and difficulties for millions.

 

The introduction of a system for collection of biometric data does not in fact protect national security and Ukraine’s national interests, but will lead to mass-scale violations of fundamental human rights and is economically unjustified especially given the present economic crisis.

In view of this, we would ask you to use your power of veto on this law and to ask parliament to reject it.

 

 

Yours sincerely,

Arkady Bushchenko, Head of the UHHRU Board

Volodymyr Yavorsky, UHHRU Executive Director

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