The line in the sand : discretionary power in Technological Border Control

(1)

The Line in the Sand

Discretionary Power in Technological Border Control

Josje Pot

Master Thesis Political Science – International Relations University of Amsterdam

June 2016

Supervisor: Darshan Vigneswaran Second Reader: Polly Pallister-Wilkins

(2)

2

1. Introduction

In 1995, seven states of the European Union started the implementation of the Schengen Agreements, removing their internal borders and allowing free movement across countries. Today, 26 countries are part of the Schengen agreement, allowing 400 million EU-citizens free movement across the internal borders of the European Union (Migration and Home Affairs 2016a). Increased perceived threats and securitisation policies in the ongoing post 9/11 era, rapid technological advancements leading to new forms of politics (Jansson & Erlingsson 2014: 292), as well as an increasingly globalised world, where the political, social and economic realms become more interconnected make for a change of character of borders and its politics (Wilson & Donnan 2012: 2). As globalisation and securitisation rule the current world order, and people become simultaneously more global and mobile, the European Union faces challenges managing its shared external border. The current refugee crisis is exemplary to this statement, leading the Commissioner of Migration and Home Affairs to state that “[i]f we want to maintain our internal area of free movement, we must better manage our external borders.” (Avramopoulos: 2016). As such, border policies are high on the European agenda.

In this light, the European Commission has been working on a “Smart Borders Package since 2008, aiming to “modernise external border management by improving the quality and efficiency of controls” (European Commission 2016a: 1) and thus following a global trend of introducing automated border crossings. On April 2016, the Commission issued their second proposal of the Smart Borders Package, proposing the installation of a Europe-wide Entry/Exit System (EES), aiming to

help Member States deal with increasing traveller flows, without necessarily increasing the number of border guards, and to promote mobility between the Schengen zone and third countries in a secure environment, while contributing to the fight against terrorism and serious crimes. (European Commission 2016c: 1)

As such, the system would exist of an electronic data base which would work in sync with the already existing European Visa Information System (VIS) and is estimated to be implemented by 2020 (idem: 4, 6). The EES focuses on Third Country Nationals (TCNs), meaning those who are not a citizen of the European Union, or those who do not enjoy

(4)

4

comparable rights (this is a possibility through agreements with particular countries) (European Commission 2016f: 12). According to Hendow et al. this “demonstrates the larger approach of facilitated freedom of movement for some and reinforced controls of others at the external borders of the European Union” (Hendow 2015: 40).

The implementation of the Smart Borders Package is mandated to eu-Lisa, an EU-agency established in 2011 in order to; “provide a long-term solution for the operational management of large-scale IT systems, which are essential instruments in the implementation of the asylum, border management and migration policies of the EU” (eu-LISA: 2016). The proposal, estimated to cost EUR 480 million, will now be reviewed for approval by the European Parliament and Council, after which the Commission expects to see the EES in effect starting 2020 (European Commission 2016e: 12; European Commission 2016c: 6).

According to McGrew, the compression of time and space caused the stretching of political, economic and social processes across borders, leading to deterritorialisation (McGrew, 2014: 18-19). This has not led to an increased openness however, for it seems that the state frontiers, especially those of rich countries, have simultaneously become more militarized and secured (Eriksen 2007: 95). Heyman additionally states that the liberalisation of borders mostly applies to goods, whereas the movement of people has become increasingly monitored and restricted (Heyman 2004: 305). Another important change in border management is that the execution no longer only take place at the proverbial line in the sand, i.e. the geographical border, but increasingly takes place at the ‘delocalised’ border, for example through visa policies (Dijstelbloem & Broeders 2014: 5). Exactly this shift in the location of border politics will be the focus of this thesis. The border will thus be seen in a broader sense: there where the decisional power and processes on who may cross are located. Moreover, this thesis will solely look at these decisive processes aimed at human mobility. Accordingly, border management is continuously changing, both in terms of content, as well as in execution.

Lipsky (1980, 2010) argues that policy is shaped by those who execute it. The elbow room executioners have within the policy framework, is known as discretionary power. Even though the policies themselves and their objectives are formulated by governmental bodies, the way the policies are carried out is what eventually realises them. This thesis will argue that discretion can therefore either be deemed as positive or negative, as it respectively can be seen as either customised service, or as arbitrary decision making. As a resolution for the latter’s possible randomness, governments tend to aim for standardisation, which would

(5)

5

diminish the room for discretionary power. The most attractive way for governments is standardisation through technology. The appearance of this effect within border control will consequently be the aspect that will reviewed in this thesis.

Technology has become key in political processes in the last years, as it has taken over most of the tasks that used to be done by individuals (Bovens & Zouridis 2002: 175). As such, it can be argued that technology becomes the executioner of the formulated policies, creating a shift in power from individuals to technological programmes. In this regard, it becomes interesting to view technology as a political actor. Different methodologies have therefore been constructed to decide if and how technology could be seen as having agency, and subsequently, if a particular programme can be said to have discretionary power.

The growing importance, scope, and complexity of mobility and border management following both globalisation and securitisation unsurprisingly leads to increased technical border control processes. Individual nations as well as the European Union have set up information systems and databases, “creat[ing] a network of information technology to collect, store, check, compare and exchange all kinds of data and profiles extracted from migrants, travellers and their social and professional context.” (Dijstelbloem & Broeders 2014: 2). Seemingly, the European Union sees technology more and more as an indispensable tool for its external border management, but consequences with regards to the massive storage of data retrieved from technological border systems seem yet difficult to predict (Hendow et al. 2015: 52)1. As already mentioned, these changes open up a new set of interesting questions - about the influence of technology as a means of political power within border management.

These changes in political power affect the European efforts of strengthening the management of its external borders. Dijstelbloem & Broeders identify three transformations of Europe’s borders; the first being the delocalisation of border politics, where the authors argue that border management no longer only takes place at the ports of entry, i.e. geographical border lines, but are “increasingly incorporated in the bureaucratic systems of member states” (Dijstelbloem & Broeders 2014: 4). The second transformation shows how border control is no longer only executed by national governments; but becomes increasingly

1

Moreover, even though this technological changes are interwoven with the saving of large bodies of data, this thesis will not contribute to one of the salient current debates in (international) politics, viz. the relationship between security and privacy. This would however be an interesting topic to explore, as the EES will collect and save data of people without any (criminal) charges.

(6)

6

a responsibility of organisations, such as the European Union, but also private companies supplying technology, machinery, or advice (idem: 5), and third; border control is increasingly aimed at the human body, meaning that devices used in border control are directed at (digitally assessed and stored) biometrics such as DNA, fingerprints, bone-scans etc. (Dijstelbloem & Broeders idem: 6). All transformations will be reviewed in light of the Smart Borders Package.

Research Objective

This thesis will research the “Smart Borders Package” as issued by the European Commission in April 2016. The Package proposes the instalment of a European Union wide Entry/ Exit System. As the above demonstrates, the goal of this thesis is to show if and how the shift from personal to technological means influences how policy makers envisage discretionary power in border policies. This thesis will therefore attempt to answer the following research question:

Do technological forms of border control processesexert a new form of discretion?

To answer this question, two sub questions have been formulated that both cover an important part of the research question. The first question shows the development of technological forms of border control by analysing the advancements made in order to issue the current proposal. It therefore reads:

1.) What has been the logic that led to the development of the Smart Borders Package?

This question is answered through an historical analysis, looking at the developments that led to this proposal, the actors involved, the changed that have been made during the process and it will provide an overview of the final policy proposal.

The second question will show how the policymakers have envisaged discretionary power in the proposal, and therefore reads:

2.) What instances of discretionary power can be found in the Smart Borders Package?

In order to answer this question, six characteristics of discretionary power have been established. The proposal has subsequently been thematically coded through these six categories, providing an index of appearances which will help analyse how the policymakers have thought about this change in power.

(7)

7

It is expected that this research will find ample discretionary power, albeit in a new format, viz. a shift of power towards those who are translating the policy into technological border processes. However, the appearance of random, arbitrary execution has disappeared due to structured, standardised and thus ‘neutral’ connotation of automated programming. As such, it can be argued that argue, arbitrariness is created by excessive rigidity (Bovens & Zouridis 2002: 182).

Social and academic relevance

This thesis contributes to the debate of the consequences of advanced technological programmes used in border control, through researching the Smart Border Package as recently proposed by the European Commission. As such, it will present a topical account on current political developments within border management, as well as adding to the scholarly debate of the (unintentional) effects of pre-emptive, technological decision making processes, which can subsequently lead to unfair categorisations under the guise of technical and thus ‘neutral’ automated decisions (Amoore 2009: 57). This is arguably problematic as borders can be characterised by a one-dimensional decision-making process. Therefore, Salter argues; “We must investigate the legal state of exception at the border and the ways that these exceptions are instantiated in laws and politics” (Salter 2006:184). Moreover, technological advancements in border control have, according to Côté-Boucher, “consequences for how we think about discretion and decision-making at the border and should be further investigated (...)” (2015: 64). This is exactly what will be attempted through this thesis, by studying the consequences of the human – technological power shift in border policies.

It must be stated clearly that, even though most of the research in this field is aimed at the debate of human rights, security and privacy2, this thesis will stay clear of these issues and is directed at the role of discretionary power within the implementation of these border policies. Moreover, the focus is on how policy makers envisage and/or think about discretion in their policies, meaning that the actual execution of the policies lies not within the scope of this thesis. Lastly, even though EU countries already have their own kind of EES systems, this study will still be relevant for its huge scale of standardisation.

2_{See for example Hendow et al. (2015), Vermeulen & Bellanova (2012), and many interesting works of Didier}

(8)

8

2. Theoretical Framework

This second chapter will lay down the theoretical underpinnings of this research. It exists of five paragraphs; first, border policies will be scrutinised in order to lay bare where power is exercised. Second, an account of discretionary power will be given, in order to see how this power is precisely carried out. This will provide the background to understand how, as will be seen in the third paragraph, this power is gradually replaced by technology. The fourth section will therefore examine if technology can be said to have agency, and with that be a form of power. The last section will tie the established framework of technological discretion together with the implications in border policies.

Sovereignty, borders, and border management

Borders do not come alone. They are intrinsically intertwined with the state they contour, and the choices that state has made regarding its border policies. This chapter therefore lays the groundwork for understanding how the border and its policies are tied to the sovereign state, and how the state can be viewed as a form of one-dimensional power. This will provide the necessary understanding of what the implications for policies can be when the location of the border, and with that the execution of the policies are changing.

Sovereignty is an important concept to understand how the current global political system works. It implies that there is no higher form of power that can intervene or meddle with state affairs (Smith et al. 2014:4). One core aspect of this state sovereignty is its territoriality; marking the exact limits of the sovereign’s power. The emphasis of territoriality is therefore on state borders, since those borders effectively create the territory of the state (Anderson & O’Dowd 1999:589). Moreover, a border can be seen as an instrument to constitute citizenship, for it limits who is a citizen in relation to the sovereign, but can simultaneously be the place where a claim for citizenship can be denied (Anderson in Dijstelbloem & Broeders 2014: 4; Côté-Boucher 2015: 50). Schmitt argues that “The essence of the state’s sovereignty [is] not the monopoly to coerce but the monopoly to decide” (Schmitt in Salter 2006: 160). As such, the sovereign has the power to protect itself, by including, excluding, search and examine all that crosses its border (Salter 2006: 172). Interestingly, the location where these decisions are being made are no longer automatically

(9)

9

taking place at the border itself. It can thus be argued that the actual location of the border and its politics seems to be shifting. According to Sassen:

A state border is not simply a borderline. It is a mix of regimes with variable content and geographic and institutional locations. Different flows – of capital, information, professionals, undocumented migrants - each constitute bordering through a particular sequence of interventions, with diverse institutional and geographic locations. The actual geographic border matters in some of these flows and does not in others. (...) In short, the geographic borderline is but one point in the chain. Institutional points of border-control intervention can form long chains moving deep inside the country. Yet notwithstanding multiple locations and diverse levels of control, the national border has a recognizable point of gravity. (Sassen, 2013: 30).

In other words, although the territorial border remains central, which is unsurprising as this is still the ‘line’ which requires crossing, the politics that precede this crossing are being increasingly further removed, or delocalised, from its geographical location. This is one of the consequences of the rise of non-state threats. As borders used to serve the purpose of protecting the state against the threat of other states, it now has to increasingly defend itself against individual threats, like terrorism, that are not automatically linked to another (hostile) state (Adamson et al. in Avdan 2014: 616). Consequently, the focus of a border is no longer just on ‘who may, and may not cross’, but borders must facilitate and monitor movement in order to be one step ahead of these movements. This way of controlling movement in order to be able to serve the interest and security of the sovereign, something which, nowadays, resides mostly in the digital realm instead of at the geographical border (Wilson & Donnan 2012: 21).

To illustrate the increasing delocalising an securitisation of border control, it is useful to look at the following definition of ‘border management’ given by the International Organisation of Migration (IOM):

[The f]acilitation of authorized flows of persons, including business people, tourists, migrants and refugees, across a border and the detection and prevention of irregular entry of non-nationals into a given country. Measures to manage borders include the imposition by States of visa requirements, carrier sanctions against transportation companies bringing irregular migrants to the territory, and interdiction at sea. International standards require a balancing between facilitating the entry of legitimate travellers and preventing

(10)

10 that of travellers entering for inappropriate reasons or with invalid documentation. (2011: IOM)

As can be seen by this definition, border management is executed largely through the social sorting of individuals. The IOM’s definition revolves around categories such as ‘authorised

flows of persons’, ‘irregular (…) non-nationals’, and ‘legitimate travellers’. Through this

‘social sorting’ process, the individual is categorised as national, stateless, refugee, foreigner or alien (Satler: 171) but also in terms of health, wealth, labour/leisure, and risk (idem: 176). Côté-Boucher argues that this kind of decision making at the (deterritorialised) border “presents a heightened potential for abuse and disrespect of fundamental rights” (2015: 50).

According to Heyman, ‘ports of entry’, the place where borders are crossed under scrutiny of a national authority, should therefore be viewed as places where exactly that categorisation creates a place where people move up and down in value, whereby the international social sorting is reconfirmed (Heyman, 2004). Moreover, as this categorisation is recorded in databases, it is consequently fixed as a legal status of the individual with regards to the territory (idem: 304). A good example of the recording of these categorisation is through visa schemes. As stated by the IOM, the visa system is a form of border management which enables states to pre-screen non-state actors, i.e. individuals wishing to cross their border (Avdan, 2014: 593). Salter argues that the border is therefore a “permanent state of exception”, where a one-dimensional process takes place in which the sovereign is able to exert its legal power by deciding the legal and political status of the individual, but the individual in turn can make no claim to their rights (Salter 2006: 169,171). Arguably, Lipsky sees this as individuals being non-voluntary clients/ travellers. The traveller requires services that are not to be found anywhere else, and cannot ‘opt-out’ of these encounters, leading to an incapability to respond, and possibly change, the policy that is carried out (Lipsky 2010: 54-6). Since Lipsky argues that “accountability is the link between bureaucracy and democracy” (idem: 160), this strengthens the claim of the border being a state of exception; a one-dimensional frame, in service of the state’s security, instead of being a reciprocal process of a government acting on behalf (and under scrutiny) of its citizens. However, Salter also argues that the process of crossing a border can be seen as a form of entering a social contract, a process in which an individual requests a legal status through a visa application, which the state consequently provides (Salter 2006: 168). What this implies is that the individual also exerts its agency by consciously, or voluntarily, choosing to enter this contract, even though

(11)

11

the result is yet unclear. However interesting, this thesis will not get further into this debate on the agency of border crossers, but will specifically look at the policies preceding the crossing of borders. As already mentioned, an important factor within these policies is pre-screening, whereby the state exerts its authority of being able to in- or exclude an individual applicant

before arriving at the physical border, though without losing the power to prevent access

when the individual arrives at the physical border (idem: 175).

Pre-screening tactics thus exert the state’s power to categorise individuals upon their wish to enter a state, and subsequently provide them with a legal status deciding whether they may enter. According to Salter, this is done on the grounds of managing the state’s stability, risk and threat at the (delocalised!) border (Salter 2006: 172). Delocalisation is possible through technological advancements in these pre-screening policies. As will be seen in detail later, this adds another layer to the process of categorisation, with an emphasis on binary, technological classifications such as trusted/ distrusted and low-risk/ high-risk (Dijstelbloem & Broeders 2014: 14). This chapter has shown the power of the state of exception, and how the location of where that power is executed is changing due to technological advancements. The next chapter will take one step back and examines the possible reasons a state may have to change the execution of its policies.

Discretionary power

This chapter will give an account of discretionary power; the degree of freedom an executioner has within the limits of the policy framework. This is necessary to understand what motives policymakers have when visualising and writing their policies. This section will show how discretion can be explained as both a positive- and a negative form of power.

Before pre-screening practices were possible, the decision of who was allowed to cross a border was solely in the hands of border officials who were, located at the physical border, executing the policies as asserted by their state. These officials could therefore be seen as street-level bureaucrats, having discretionary power. Discretionary power can be defined as the elbow-room a worker has within the outlined policy framework (Lipsky 2010: 13-4). Ever since Michael Lipsky coined the term in combination with “Street-Level bureaucracy” (also the title of his book, 1980), it has not left the public policy debates. He affirms the important role of executive officials in the making of policy as follows:

(12)

12 [T]he actions of teachers, police officers, or welfare workers “become, or add up to, agency policy,” and (…) their actions effectively “become” the public policies they carry out.” [However, t]his interpretation is clearly too limited. Street-level bureaucrats may indeed “make” policy in the sense that their separate discretionary and unsanctioned behaviours add up to patterned agency behaviour overall. But they do so only in the context of broad policy structures of which their decisions are a part. (Lipsky, 2010: 221).

As can be seen, Lipsky claims that, since policymakers can never completely encompass and predict the entirety of their policy, the policy is not only implemented, but through their actions also shaped by the street-level bureaucrat. This bottom-up influence on policy, or ‘decision-making power’ has worried many policy makers for its uncontrollability and possible arbitrariness (Bovens & Zouridis 2002: 175). Lipsky therefore elaborates on why discretionary power has not altogether disappeared from policy yet. He describes that 1.) the situations are often too complicated for workers to be replaced by programmes; 2.) it often involves situations where “sensitive observation and judgement” within the human dimension is needed and 3.) discretion effectively contributes to the legitimacy of the policy (Lipsky 2010: 15). The latter has to do with the importance of human contact, not only because complex situations require this, but also because the interaction “encourages clients to believe that workers hold the key to their well-being” (ibid.). Moreover, discretion can be seen as a customisation process, since the bottom up qualities of discretionary power allow the policy to be adapted to local needs and conditions (Erasmus & Gilson 2008: 362). As an example, Lipsky argues that

Modern bureaucracies gain legitimacy by (often rhetorical) commitments to standards of fairness and equity. But street-level bureaucrats are constantly confronted with the apparent unfairness of treating people alike (just as they recognize the obvious inequities of unequal treatment). Since individuals are so much more than their bureaucratically relevant characteristics – age, sex, place of residence, income level, etc. – a failure to recognise these differences sometimes seems unfair in itself. (Lipsky 2010: 22-3).

In sum, discretionary power could therefore be seen as a solution for standardisation, where customisation processes allow for the policy to be better fitted for all.

However, Heyman argues that these adaptations of workers can become standard as well, as he states that; “discretion is not a formless domain of uncontrolled action but, rather,

(13)

13

an analysable domain of patterned actions that significantly affect law and administration.” (Heyman 2009: 367). This is demonstrated by his research on the US-Mexico border, in which he claims the border officials have ‘covert classifications’ when it comes to discretionary decisions: “The covert classification is made according to perceived "moral worth," "national origins stereotypes” (…) and "apparent social class."” (Heyman in Salter 2006: 182). As can be seen here, the border officials have a way of social sorting in a structured, though not by policy prescribed way. As such, Heyman adds that, although analysable and patterned, discretion is very complex as a form of power, and the levels of analysis vast and widespread (Heyman: 368), and it moreover means that policy cannot be analysed from policy documents alone (Salter, 2006: 182), since it will provide an incomplete picture. Most importantly, as can be seen by Heyman’s exposed covert classifications, worries of arbitrary performance in border policies are quite relevant, challenging the aforementioned claim that discretion is a fair way of executing policy through customisation. One answer policy makers have in ‘resolving’ this randomness of discretionary power is by objectively standardising processes. As such, the two conflicting views on discretion can be summarised as follows:

Positive: Discretionary power as a solution for standardisation – possibly fixed through customisation

Negative: Discretionary power invokes arbitrary and uncontrollable actions – possibly fixed with standardisation

The most attractive way of standardisation is technology. Technology has become key in political processes in the last years, as IT has taken over most of the tasks that used to be done by individuals and/or street-level bureaucrats (Bovens & Zouridis 2002: 175). As we have now seen how discretionary power can be viewed, the next chapter will elaborate on the was discretion and technology go together.

From Streetlevel to Systemlevel Bureaucracy

As we have seen, Lipsky argues that street-level bureaucracies are characterised with people judging and deciding about people. Exactly this judgement is why it is, he argues, impossible for programmes of either kind to replace it (Lipsky 2010: 161), in particular because “Over time, recognition of the potential of people previously defined as physically and behaviourally

(14)

14

deviant (…) can change” (idem: 70). This section will therefore take a look at discretion as it becomes part of technology. This will be helpful in order to understand the role technology has come to have within policymaking.

According to Bovens & Zouridis (2002), technology has very swiftly transformed the street-level bureaucracy into a system-level bureaucracy, meaning that all the desk-workers and officials handling individual cases are replaced by computers and algorithms programmed with standardised and/ or predicting procedures. As such, those employees who remain are either:

1. Those active in the data processing process, such as systems designers and the legislative specialists, legal policy staff, and system managers associated with these processes; 2. Management and those controlling the production process, and 3. The interfaces between citizens and the information system, such public information officers. (idem: 180)

It would seem that, through the replacement of street-level bureaucrats by automation and standardisation, there is little room left for discretionary practices, except for those translating those policies into technology (idem: 181), for they, as Lipsky argued, effectively shape the policy through their actions (idem: 181). It is important to note here that ‘execution’ starts to have a different meaning, as it moves more to the background where, instead of interacting with people, it manages the system that does the interacting. Bovens & Zouridis argue that through the attempt of eliminating random practices through standardisation, arbitrariness can be created through excessive rigidity (idem: 182), for decisions become less likely to be reversible. Moreover, there is again the question of accountability, albeit in a different format. Whereas the street-level bureaucrat can be traceably arbitrary in his/her execution of the policy; as long as the algorithmic translations and applications of the policy are unclear, the system-level bureaucrat can be invisibly rigid (idem: 183) and is therefore possibly problematic with regards to accountability and legitimacy (Jansson & Erlingsson 2014: 295). As this is happening through the technology the policies are translated into, it is important to see how we should view the technology in this sense; what is its role as a new form of political power, how is policy translated into technology and who is accountable? (Bovens & Zouridis 2002: 182). This is especially relevant since Pickering and McCulloch argue that this is even more important when looking at border policies. The fact that its arena is both inside

(15)

15

and outside different sovereignties and border officials need less proof to mark an individual as ‘suspicious’, heightens the likeliness of violating human rights (in: Coté-Boucher 2016: 50). To be able to understand the role technology plays on the political stage, it is important to take a closer look at how technology should be viewed as an actor that plays a role in policy making.

Technology as a Political Actor

As the role of technology is increasingly enlarged in policy making, it is important to reflect upon the question if it can be consequently said that technology has agency, and how. This chapter therefore looks at two methodologies, the Actor-Network Theory and the Analytics of Devices, which attempt to ascertain whether and how technology can have agency.

Ever since technology has been introduced in all fields of the world stage, scholars have been searching for a way to comprehend its role and function. As such, Callon and Latour have conceptualised the Actor-Network Theory (ANT) (Sayes 2013: 134; Dijstelbloem & Broeders 2014: 7), and Amicelle et al. (2015) have explored an Analytics of Devices (AoD). Both should not be viewed as a theory, but merely as a methodology (Sayes 2013: 135; Amicelle et al. 2015: 297), or as a tool to show how non-humans, such as technology, are interconnected with the concepts of the social sciences. Moreover, as a methodology it is able to explore how and if these non-humans have agency in particular situations (Sayes 2014:142). As this thesis will only look at the possible agency of technology as a non-human, it will henceforth only mean technology when referring to the concept of non-humans within ANT and AoD.

Latour states that in order to assess whether something or someone has agency, only two questions need to be asked: “[d]oes it make a difference in the course of some other agent’s action or not? Is there some trial that allows someone to detect this difference?” (Latour in Sayes 2014: 141). In relation to technology, ANT subsequently addresses the relation between the social and the technological realm, focusing on “connections and the networks of association that emerge when information is circulated and distributed through networks of different kinds of social and technological actors” (Dijstelbloem & Broeders 2014: 7). As such, Sayes argues that, although both Latour’s questions can be positively answered, technology does not have agency itself, since it is just never by itself due to the socio-technological interconnectedness (Sayes 2014: 144). Thus, we should view ANT as a

(16)

16

methodology which allows the complexity of analysis that has arisen due to the interconnectedness of human action and technological advancements (idem: 145). Amicelle et al. (2015) therefore translate ANT into an Analytics of Devices. Through the determining practice of the concept ‘device’, they temporarily stabilise technology to allow for analysis by “call[ing] for the simultaneous consideration of object, purpose and effect” (Amicelle et al. 2015: 293). A device, thus, can be seen as “an artefact, a piece of equipment or an instrument made or adapted for a particular purpose, as well as a plan, method, trick or intrigue, and finally a design or motif” (ibid.). Through this, they argue, it is possible to move beyond the divide between the technological and the social, and analyse the interconnectedness through the device. This means that devices can sometimes have little or no influence, and in other times have the ability to transform. Consequently, the Analytics of Devices enables us to ask somewhat more specific questions; viz. whether and how devices make a difference (idem: 297). On that account, it is important to mention that there is much progress within the field of technological advancement, such as the rapid advancements that are made in machine learning and data mining. As a consequence, although being conscious of these programmes ever developing and evolving, the technological side will not be extensively dealt with within the scope of this thesis. Technology will therefore, by example of Amicelle et al. be temporarily stabilised in order to be able to focus on its connection to policy implementations and implications as they are the focus of this research.

It is consequently interesting to explore whether and how security devices are simultaneously a part of, and play role in, policy. Amicelle et al. explain that this is done through the exploration of what representations and meanings a device, as a socio-technical construction, entails, so it is possible to subsequently be able to analyse the effects of this devise (Amicelle et al. 2015: 296). As has been shown earlier, border management is executed largely through the social sorting of individuals. As this categorisation is increasingly done by security devices such as automation and algorithmic programming, Dijstelbloem & Broeders argue that these devices do not only portray and/or translate reality into technology, it subsequently “create[s] constructions which are partly based on these realities but also live a life of their own (...) depending on the status these new categories are granted” (2014: 13). As such, these devices cannot be seen as a direct translation of policy into software, but should be viewed in their interconnectedness with its following consequences, which are not necessarily the effects intended by the policy makers (idem: 9). Alongside showing that technology is not just a means of structuring reality (idem: 10), this implies a form of discretionary power not

(17)

17

abrogated by technological advancements, but effectively realised by this technology, for the policy is shaped through the devices.

Although policy might be shaped by those who execute it, the formulation of policy and goals lies unaltered in the hands of governmental bodies (Amicelle et al. 2015: 300). However, the interconnectedness of the social and the technological demands of policy makers to effectively decide on what kind of devices will be used to implement their policies, and how (Halpern in Amicelle et al. 2015: 297). As for border management, this is important because these choices will ultimately determine how their policies regarding social sorting of individuals will be transformed into devices.

Agency and Discretion in border management technology

As we have seen in the previous chapter, it is necessary to ascertain whether and how technology has agency, in order to be able to determine its influence. Both the Actor-Network Theory as well as the Analytics of devices recognise agency in technology through its socio-technological interconnectedness. Technology thus incorporates discretionary power because it shapes policies. This is important to note, not in the least because this has the possibility to cause effects unintended by the policymakers. With this knowledge in mind, the following section will return to the practicalities of border management and take a look at how we should view discretion and technological agency in this policy field, and what we could expect as possible effects.

State driven categorisation policies and subsequent practices through technological devices implemented could be seen as leading to an “Actor-Network State”, with which the authors indicate a state where socio-technological practices are interconnected (Passoth and Rowland 2010; Carroll 2006 in Dijstelbloem en Broeders 2014: 6). Technological devices, such as visa and passport (pre-) screening systems, fingerprint scanners, and body scans, allow governments to virtually collect data, which enables them to manage this information and subsequently their borders, from a distance (Dijstelbloem & Broeders 2014: 2). It can be argued that this practices creates ‘data doubles’, by “abstracting human bodies from their territorial settings and separating them into a series of discrete flows (...) which can be scrutinized and targeted for intervention” (Haggerty & Ericson in Dijstebloem & Broeders 2014: 7). As such, the interconnectedness of the socio-technological sphere is again illustrated, for it creates a collection of technological information ready for examination. It is

(18)

18

significant to realise that data doubling is not a practice of direct translation into technology, but must be seen as a complex process of interconnectedness (Dijstelbloem & Broeders 2014: 8), whereby a “network of associations [is created] in which power relations come into being as an emerging consequence instead of as an intended effect” (idem: 9). Moreover, it can be argued that the mere fact that the decision-making process is being removed from human interactions or bodies, creates the pitfall of a feigned neutrality of outcomes (Côté-Boucher 2015: 51). Feigned, for the digital representation of bodies could be rapidly changing statuses when the overarching algorithms are being adjusted (Dijstelbloem & Broeders 2014:11). As such, it is argued by Amoore and de Goede that these data-doubles become part of an incomprehensible and bureaucratic technological system which is, most importantly, difficult to challenge (in Côté-Boucher 2015: 51). This difficulty to challenge can be traced back to the earlier mentioned “state of exception” at the border because of its inherent one-dimensional exertion of power.

Dijstelbloem & Broeders distinguish three basic categorisations within border policies; trusted (usually nationals and nationals of friendly countries), not trusted, and suspected, of which the two latter will almost certainly not be allowed to cross the border, and preferably kept as far away from it as is possible (2014: 10, 11). These categories are used in algorithms, creating ‘rules of association’ which means calculations are being made based on available data, predicting possible outcomes and subsequently influencing decision-making about whether or not people are allowed to enter the state (Amoore 2009: 51). These predictions are consequently shared throughout security networks generating, as Amoore states, a “geography of suspicion” (idem: 52). In other words, algorithms are used, within many fields, for calculating and/ or predicting probability on the basis of data and patterns, and therefore seem a perfect means for pre-screening those who wish to cross a border. Amoore critiques the use of algorithms as a means of securitisation, for, she argues, its speculations, predictions and subsequent ‘guilt by association’ are increasingly viewed with “the credibility of scientific judgement (...) inviting anticipatory actions and making scientific and certain what would otherwise be mere uncertain doubts or suspicions” (idem: 55). Like Côté-Boucher, she criticises, the feigned neutrality of the system, which is conveyed by words as ‘technical’, ‘computations’ and ‘scientific’, because the basis on which those technical, scientific computations are made are the categories that derive from social sorting (idem: 57). Moreover, Salter argues that these data collections and the ways they are translated into algorithms are opaque, meaning that it nearly impossible to trace which of your data is being

(19)

19

used and by whom (Salter 2006: 185). These unclear consequences make it difficult to answer the questions previously asked on the new role of technology as a political power, how policies are being translated and who is accountable for the effects. Moreover, as described earlier, Heyman researched how border guards on the US-Mexico frontier effectively structured their discretionary power, by having covert classifications. Salter argues that this indicates a “slippage between risk profiles and stereo-types” (2006: 182). He continues to argue, like Amoore, that the reliance on technology is in itself a risk, for the algorithms are based on the same stereotypes (ibid.).

As we have already seen throughout this account, discretion at the border can be analysed trough both the state of exception; producing a setting in which someone’s legal and social order is one-dimensionally proclaimed, and through social sorting, claiming that the decisions taken at the border create an international social order (Côté-Boucher 2015: 50). Therefore, it is interesting to see through which sequence the implementation of border technology has been executed. Has the discretionary power of border guards been translated into policy, after which it is implemented into devices, or has the policy remained the same, whereupon the discretionary practices have been translated into algorithms? If the latter would be true, it would, as is key in discretionary power; make to policy by executing it, albeit in a technological, and therefore structured and recorded way. To summarise these questions:

(20)

20

3. Methods and Data

This chapter will explain which methods and data have been used in order to conduct this research. In order to do this, it will first explain the choice for the method, a interpretative case study, has been chosen. Subsequently, it will explain the choice of the case itself; the Smart Borders Package. Third, the research objective and design will be further elaborated on. Lastly, the methods that are used to conduct this research will be explained and clarified.

Choosing a Method

In this thesis, the Smart Borders Package, consisting of a proposal for the implementation of an Entry/Exit System will be researched as a case study. According to Vennesson, “A case is a phenomenon, or an event, chosen, conceptualized and analysed empirically as a manifestation of a broader class of phenomena or events” (2008: 226). Gerring adds that the case should have a “typical set of values”, that can be traced back to the general phenomenon it represents (Gerring 2006: 91). As such, the difficulty lies in indicating the specificity of the case, as well as acknowledging the relation to other cases (Vennesson 2008: 226). Both authors distinguish several types of case studies in their works. This thesis describes an interpretative case study, which are characterised by “us[ing] theoretical frameworks to provide an explanation of particular cases, which can lead as well to an evaluation and refinement of theories.” (idem: 227).

The theoretical framework has shown us how the power that is executed at (delocalised) borders is gradually replaced by technology. Moreover, it has attempted to show how this can have possible consequences for discretionary power, as policy makers increasingly turn to technology with regards to border management. The Smart Borders Package therefore perfectly lends itself as an interpretive case study, as this thesis will attempt to add the effects of technology to the theory on discretionary powers.

Case Selection

The specific choice for the Smart Borders Package is twofold. First, it is an exemplary case of human actions and agency, viz. the manually assessing and stamping of passports, that is being transferred into an automated, i.e. technological, programme. It therefore perfectly represents the general phenomenon of technology becoming a bigger and more important

(21)

21

aspect and/ or player in border policies. Secondly, since this thesis is about how policymakers envisage the role of discretion in technological border management, it is important to have access to the process that preceded the proposal of the Entry/Exit System. Regulation (EC) No 1049/2001 that was installed in 2001 provides that the three large governmental bodies of the European Union, i.e. the Commission, Parliament and Council, have to provide easy access for citizens applying to all documents in all fields of European Union activity (EUR-Lex). This ensures the availability of relevant and available data.

Research Objective

The introduction has already briefly mentioned the goal and layout of this thesis. This paragraph will further elaborate upon the design. The empirical part of this thesis will revolve around the Smart Borders Package. It aims to answer the following research question:

Do technological forms of border control processesexert a new form of discretion?

Essential to this question is the difference of human- and non-human discretion, in the theoretical framework it was argued that: “discretion is not a formless domain of uncontrolled action but, rather, an analysable domain of patterned actions that significantly affect law and administration.” (Heyman 2009: 367). However, he adds that it is very complex as a form of power, and the levels of analysis vast and widespread (Idem: 368). The analysis will take place in two parts, characterised by the following sub questions:

1. What has been the logic that led to the development of the Smart Borders Package? 2. What instances of discretion can be found in the Smart Borders Package?

The logic of these two questions will now be separately explained.

The first question, - What has been the logic that led to the development of the Smart Borders

Package? - covers the first part of the research question, as it discusses the technological

border control process, the Entry/Exit System, the European Commission is proposing under the Smart Borders Package. This section will provide a historical account of how the proposal has come to be. This reasoning is twofold. First, it will lay bare the policy decisions made during the formation of this proposal. Second, it will show why the former situation needed

(22)

22

changing, i.e. why the choice has been made to make the shift to technology in the first place. This section of the thesis will be set up chronologically in order to systematically and comprehensibly show the process towards the issuing of the proposal.

The second question - What instances of discretion can be found in the Smart Borders

Package? - covers the second part of the research question as it tries to uncover the form of

discretion as it is envisaged in the Smart Borders Package. It will therefore look at how different characteristics of discretionary power are featured in proposal of the Entry/Exit System, in order to see how policy makers have envisaged the role of discretion in this form of automated border processing.

Selected Data

This paragraph will explain the choices of data that have been made in order to conduct this research, which will consist of the qualitative research of policy documents. According to Gerring, a case selection is (among other things) reliant on the availability of relevant data, as well as the researchers confidence in accuracy and conceptual validity of this data (Gerring 2006: 91). Bryman subsequently argues that the state is a source of “a great deal of textual material of potential interest” (Bryman 2001:521). He continues that official state materials are certainly to be seen as authentic and meaningful, and as there is only one possible author they are unique. However, its pitfall is to see these documents as a depiction of reality (ibid.). This thesis views Brymans treatise of official documents of the state also applicable for official documents issues by the European Union.

This thesis will use data derived from documentation issued by the European Union in relation to the Smart Borders Package. The data is therefore solely gathered through internet searches, and is all originated from official European Union websites. Moreover, it is been carefully assessed that all documents derive from official European Union bodies. As already discussed in the paragraph on case selection, the European Union’s openness of policy documents makes it possible to follow the procedural process towards the issued proposal in April 2016. Institutes that have been involved in the political process towards this proposal, and are therefore sources of gathered data are:

(23)

23

 The European Commission  The European Parliament  EU-Lisa

To answer the first question, the starting point for data gathering is the informative webpage issued by the European Commission titled “Smart Borders” (European Commission 2016j), after which cross-referencing and snowball methods are used to create the entire framework of data needed to construe the historical analysis in order to demonstrate the political developments and decision making throughout, eventually leading to the 2016 proposal. The entire list of documents used can be seen in.

The second question is answered by looking solely at the documents issued within the 2016 “Smart Borders Package”, consisting of “a Communication on 'Stronger and Smarter Information Systems for Borders and Security'; a Regulation for the establishment of an Entry-Exit System; a proposed amendment to the Schengen Borders Code to integrate the technical changes needed for the Entry-Exit System.” (European Commission 2016c: 1). Moreover, the Staff Working Documents accompanying the proposal have been researched.

Operationalisation

This paragraph will show how the gathered data will be operationalised. This will be explained per sub question.

The first question - What has been the logic that led to the development of the Smart

Borders Package? – will be answered through an historical process analysis, uncovering the

rationale that has been developed towards the issuing of the Smart Borders Package. The starting point of the collected data is the informative webpage of the European Commission titled: “Smart Borders”.

The historical analysis will have three centres of gravity; the first official suggestion of the Package in 2008; the first proposal in 2013 and the current proposal of 2016. In between, the political processes will be described in order to show how the three main documents have come to be. Three questions have been central throughout this part of the research.

 What has been the narrative leading to this document?  What was insufficient about the former situation?  What are the proposed solutions?

(24)

24

The method that will be used In order to answer the second question - What instances of

discretion can be found in the Smart Borders Package? - is content analysis, a method to

“quantify content in terms of predetermined categories and in a systematic and replicable manner” (Bryman: 2008: 274). Specifically thematic analysis will be used, which means an index of central themes and subthemes will be created through intensive reading and re-reading, which are subsequently transferred into a data-matrix of cases and variables (idem: 554). Therefore, six categories have been identified on the basis of the work done in the theoretical framework:

 Translation into technology

 Technology as source of exercising, autonomous power  Supervision

 Complex, human judgment  Connection to clients

 Adapting to local circumstances

This section will also make use of thematic coding, where every category signifies a coding tree in the data matrix. This matrix can be viewed in ANNEX 2 . All categories will subsequently be explained as to show how each category will help identify discretion in the policy plan.

 Translation into technology

This category is based upon the claim that system-level bureaucracies exercise discretion through translating policy into technology (Bovens & Zouridis 2002: 181).

Finding instances of translation into policy would show how policy makers have envisaged the policy being implemented for execution, and henceforth might shape the policy.

(25)

25

 Technology as source of exercising, autonomous power

This category is based on Dijstelbloem & Broeders who argue that devices should not be merely seen as translations of the policy, but as interconnected with the policy, and thus shaping the policies (2014: 9-10).

This would show how technology could be seen to have agency. This is important to discern as it will have implications for the effects it is able to provide.

 Supervision

This category is based upon the idea that autonomy is needed for discretion. Much supervision will not allow for much discretion (Lipsky 14). This category will therefore logically derive from the former, expanding on the analysis of autonomous power.

This category will show how policymakers have envisaged autonomy and therefore the agency of the technology to execute the policy.

 Complex, human judgment

This category is based upon Lipsky’s first two characteristics of discretion, being: 1.) the situations are often too complicated for workers to be replaced by programmes; 2.) it often involves situations where “sensitive observation and judgement” within the human dimension is needed (Lipsky 2010: 15).

This category will show how policymakers have thought about the complex situation being handled. Who or what is trusted to make complex decisions?

 Connection to clients

This category is based upon Lipsky’s third characteristic of discretion, where he stresses the importance of human interaction for the legitimation of the policy, because these interactions “encourages clients to believe that workers hold the key to their well-being” (idem).

This category will show how policymakers have thought about how the execution of the policy will connect to the end-users, and if and how technology is able to provide the policy’s legitimation.

(26)

26

 Adapting to local circumstances

This category is based upon the claims of Erasmus & Gilson who claim discretion could be seen as a customisation process, accommodating to local needs and conditions (Erasmus & Gilson 2008: 362)

This category will show how policymakers have thought about the effect adaptability of the policy once embedded into technology.

The hypothesis for this thesis is that there will be found ample discretionary power, albeit in a new format as explained through the system-level bureaucracy narrative, meaning this power is shifted towards those who are translating the policy into technological border management. However, the appearance of random, arbitrary execution has disappeared due to structured, standardised and thus ‘neutral’ connotation of automated programming. As such, as Bovens & Zouridis argue, arbitrariness is created by excessive rigidity (2002: 182).

(27)

27

4. The Smart Borders Package Unpacked

The first part of this thesis will attempt to answer the first sub question; What has been the

logic that led to the development of the Smart Borders Package? It will therefore explain the

rationale of the European Commission for establishing an Entry/ Exit System (EES) for Third Country Nationals (TCNs). This will be done through a chronological process analysis, showing the proceeding from the moment such a system was first suggested towards the final proposal issued on 6 April 2016. It will show how the former situation was proved insufficient, and the choices that have been made in order to change this. This is done in order to show why the Commission has chosen for a technological system. As will be seen throughout the chapter, the proposed Smart Border Package has made a change from three proposed systems towards one; the EES. This system will replace the manual stamping of passports that is currently done by border guards, and will therefore

modernise the Schengen area’s external border management by improving the quality and efficiency of border crossing processes. It aims to help Member States deal with increasing traveller flows, without necessarily increasing the number of border guards, and to promote mobility between the Schengen zone and third countries in a secure environment, while contributing to the fight against terrorism and serious crimes” (European Commission 2016c: 1)

The process analysis knows three centres of gravity; the first official communication suggesting the Smart Border Package in 2008; the first official proposal in 2013; and the current proposal of 2016. A timeline demonstrating the taken steps is added in ANNEX 1. This chapter will conclude by claiming that the logic of developing the Smart Borders Package is based on the wish to enhance control over both travellers and traveller data.

2008: The Next Step in Border Management

In 2008, the European Commission issued a communication regarding their view on the future of the Union’s border management. This document shows the Commission’s main goal; the immigration policies throughout the Union becoming horizontal, leading to an integrated, shared common policy. This common policy has its own two objectives, viz.

(28)

28

enhancing security, and facilitating the travels of bona fide Third Country Nationals (TCNs) (European Commission 2008: 2, 4).

In 2008, there are three EU-wide controls that can be used by member states. The first is the visa obligation, applying to citizens of certain countries, executed by the Visa Information System (VIS), a System that verifies the authenticity of the visa and the traveller through biometrical data (idem: 3). Second, as decided in the Schengen Borders Code (SBC), TCNs are subject to a ‘thorough check’ crossing a border, involving

an examination of the travel documents, involv[ing] verifying their purpose and length of stay and whether they possess sufficient means of subsistence, as well as a search in the Schengen Information System and in national databases to verify that they are not a threat to public policy, internal security, public health and the international relations of the Schengen States. Consequently, the checks involve a number of conditions that are verified by the border guard through questions put to the traveller. Also the validity of the travel document needs to be inspected by the border guard in each case. (idem: 3-4).

The third means of control is the stamping the documents of TCNs, indicating dates and places of entry and exit of the travellers (idem: 4). As can be seen, both the check as well as the stamping is at this stage a task done by border guards.

The problem

The Commission identifies three main problems. The first problem lies in the current control system, which has a “one-size fits all approach” (idem: 4). The visa policy can only check those who have a visa obligation, meaning TCNs from visa-exempt countries are not checked before arriving at the border. Moreover, simplified checks for TCNs who do have a visa obligation are impossible (ibid). Thus, the system is not adjustable to other factors than the visa agreements made with third countries. This does not agree with the objectives of enhancing security and facilitating bona fide travellers.

The second problem is the inefficiency of identifying overstayers. The commission states that “overstayers are the biggest category of illegal immigrants in the EU” (idem: 5). The current system does not record dates and places of entry and exit. The assessment is done by border guards, who “are neither able to calculate the length of stay when different travel documents are used to enter and exit the EU or when they are confronted with practical difficulties such as a passport full of stamps or when stamps are illegible.” (ibid).

(29)

29

Lastly, the third problem lies in the increasing traveller flows, creating heavier costs for member states as they would have to increase the amount of border guards checking the travellers (idem: 6).

The Solution

The objective of an integrated border policy is according to the Commission characterised by “combining control mechanisms and the use of tools based on the flows of persons towards and into the EU” (idem: 3). The commission therefore proposes three ‘tools’, all directed at TCNs, viz.:

– facilitation of border crossing for bona fide travellers; – possible introduction of a registration of entry/exit; and

– examining the introduction of an Electronic System of Travel Authorisation (ESTA) (idem: 5).

The commission states that the instalment of these tools would ensure that travellers who are not visa obliged are also entered into the system, as biometrical data will be collected of every TCN when they enter the union, something that might pose problems at some ports of entry such as land borders (idem: 8). Moreover, it states that the instalment of Automated Border Control systems (ABCs) would resolve the issue around border guards, as one border guard could monitor ten different ABCs. It would also speed up the process for bona fide TCN, allowing border guards to have more time for those who need more attention (idem: 6).

As can be seen, the rationale employed by the 2008 communication is twofold; First, the Commission is prone to increase its mandate for checking those who come into the Union, beyond the existing visa scheme. Second, it wants to simplify the process for those who are

bona fide, or ‘trusted travellers’. It therefore states that “new technology could allow for

automating, and thereby substantially speeding up, border checks for bona fide travellers” (idem: 5). As both the collection of biometrical data as well as the systematic registration of dates and places of Entry and Exit data of the TCN are not linked to the visa agreements, the Schengen Borders Code should be amended (idem: 9).

(30)

30

The Next Step

In 2009, the Stockholm Programme endorses both the EES and the RTP (European Commission 2013a: 1, 2013b: 1). A 2011 Commission Communication repeats the 2008 objectives of “swift and secure border crossings” (European Commission 2011: 2), but also stresses the in 2008 only briefly mentioned problem of increasing traveller flows, which “cannot be addressed only by hiring additional border guards” (ibid).

The increase of border guards, according to the Communication, is due to budgetary reasons not possible for all member states. Moreover, the delays and long lines at borders “present a poor image to visitors to the European Union” (idem: 4). As we have already seen, the Commission therefore proposes an EES and RTP system, since it will enhance speed and control over border crossings. The current systems do not have the capacity to identify overstayers (VIS), nor will it complement its objective (SIS). It therefore has to be an autonomous system (idem: 5). Even though some countries are already implementing such an Entry/ Exit system, the Commission proposes an integrated policy (idem: 6), corresponding with the earlier mentioned objective of horizontal, burden sharing policies.

Through the 2011 communication, the Commission officially abandons the idea of an Electronic System for Travel Authorisation (ESTA), as a study showed that

the potential contribution to enhancing the security of the Member States would neither justify the collection of personal data at such a scale nor the financial cost and the impact on international relations. (…) In addition, for establishing ESTA, a fully functioning EES would be a prerequisite (idem: 7).

This means that in 2011, the Commission is planning on proposing the implementation of the EES and RTP, as the former will “allow[…] for more evidence-based policymaking” within the field of migration, i.e. overstayers. The RTP will provide “accurate risk management” as travellers will undergo a thorough pre-check, provide budgetary benefits, allowing less border-guards to be present (idem: 11), and it would cut the average border crossing form 1-2 minutes to 30 seconds (idem: 12). The building of an RTP would be dependent of the EES system, and producing the two systems simultaneously would be cost-efficient (idem: 8).

The line in the sand : discretionary power in Technological Border Control