Data Protection and Refugees: Discussing the Differences in Protection Levels for Citizens and Refugees.

by Nicholas Vourakes

  1. Introduction

As the world becomes even more interconnected and as autonomous technologies play a more integral role in our lives, the idea of privacy and personal space is increasingly becoming an elusive dream to the average citizen. Daily tasks and daily habits can all be tracked and monitored using vast quantities of data and surveillance techniques. As governments and private firms seek to harness and develop data and use it for their own personal uses, governments and privacy advocates are all sounding the alarm about requiring more oversight over how this data is collected. The purpose of this paper will be to consider the types of surveillance that international institutions such as the EU and other nations are using for refugees, where they are invading the privacy of refugees and making them feel criminalized, while the average citizen is not required to provide as much information and data and does not feel as criminalized by the state. This paper will seek to provide further analysis and consider the impacts of this type of surveillance and the loss of citizenship and the contradiction between the ideas of basic human rights provided to ‘’citizens’’ as defined by the state and individuals who apply for asylum who are treated on a lesser tier. 

2. A Contradiction in Good Governance: Differences in Data Protection Regulation in the E.U.

While some jurisdictions such as the United States have taken a very relaxed approach to data privacy and don’t have major data protection for their citizens, other governments such as the European Union have taken an active stance at ensuring that the average citizen’s data is accounted for and protected. In 2016, the EU passed a new regulation titled the General Data Protection Regulation (GDPR) which holds companies such as Google and Facebook accountable and requires them to report what data is collected on its users and how it is collected. This gives the user the right to control their data and not have it held in the databases of that company forever. While privacy appears to be getting recognition and there are protections being put in place for citizens of certain countries, these same governments have taken different views when it comes to refugees and stateless individuals. In the case of the European Union, while the EU has taken the bold step of passing regulations to help protect the data of its citizens, it maintains at least three active databases that collect and store biometric data on individuals seeking to apply for asylum within the EU. This data includes information such as fingerprints as well as photographs of any person seeking to apply for asylum in any EU country. Data is closely guarded and even after a set period of time, where it can be used to closely monitor migrants as they travel through the EU (Guild pp. 108-132) Instead of extending these same data protections and rights that citizens enjoy to asylum seekers, these same governments have adopted a very invasive surveillance approach, deciding to treat these individuals as criminals rather than human beings.

3. An Island of Separation: Data Privacy and Australia

Similarly, Australia has taken a very aggressive stance on the use of controlling asylum seekers and using data to deny their entry. Anne McNevin in her work Contested Citizenship dedicates an entire chapter to Australia’s asylum-seeking system and its ties to neoliberalism and the idea of privatization of border policing services. Australia’s immigration policy has faced heavy criticism, mainly because of the way individuals seeking asylum are taken and put on a separate island, away from the Australian public, and made to feel like prisoners. This form of securitization has been on the rise since 9/11, and in that time has been placed in the hands of private security firms to monitor the borders and keep these asylum seekers out of Australia. Many of these firms such as GSL services are creating a market-based approach to surveillance and seeing the idea of putting humans attempting to enter Australia behind bars as a way to increase their business. (McNevin, pp. 83-86) The CEO of the company remarked that a big source of their business has come from government contracts in the wake of 9/11 and that targeting people from the Middle East has been a big boost to their business.  (McNevin pp. 83-85) McNevin also notes that another alarming feature about these contracts with governments is that there is very little transparency or reporting to see whether these corporations are detaining individuals lawfully, or just seeking to boost their bottom lines and detain any person because they have a certain appearance. (McNevin pp. 84-85) McNevin cites Saskia Sassen’s idea of ‘’private norm-making, where government functions and entire systems of governance ware being privatized. (McNevin pp. 85-86)

Sassen states that there are two consequences of this arrangement. The first is that authority normally reserved for governments is now being put into private hands, and that more corporate interests are entering fields that were once considered in the hands of the public (McNevin pp. 85-86) The other area of concern McNevin notes is the idea that strict lines on a map demarcating a border are no longer applicable under this model. Australia has done this to its neighboring islands including Christmas Island, Ashmore Island, Cartier, and Cocos (Keeling) Islands. What are normally territories that are part of Australia are now exclusionary zones where refugees and asylum seekers are considered ‘’offshore entry persons.’’ This means that If asylum seekers land on these islands, they are no longer eligible to apply for a visa but are now stuck and excluded on these islands and placed in a territorial no man’s land. (McNevin pp. 86-87) Australia has even created exclusionary zones in international waters, stating that any refugees and asylum seekers who enter these zones are not eligible to apply for visas and are limited in applying for asylum (McNevin pp. 87-88). This has created a new level of separation that has not only put a heavy level of reliance on surveillance but goes against any forms of protection that are even outlined in international law. Even with international conventions and protections, individuals seeking asylum are still not given protection, as these measures have been in place since the 1990s, and have existed in more extreme firms since the early 2000s after 9/11 (McNevin pp. 76-82) With these measures still allowed to exist, it shows that even the idea of citizenship and any basic protections are not applicable to those who require these protections the most.

4. The Failure to Extend Rights to Non-Citizens: A Theoretical Analysis:

What is striking about these cases is that despite the introduction of these advanced surveillance technologies and the privacy issues that they represent, the protections that are supposed to guarantee basic rights to asylum seekers and prevent these abuses are not being implemented, giving states a wide range of powers in being able to put in these rights-abusing policies. International Conventions such as the 1951 Geneva Convention give explicit protections for refugees such as non-refoulment, where they cannot be sent back automatically because of the danger that they can face if they go back home. (Moldovan pp. 683-684)  One of the fundamental flaws of the 1951 Convention is the great emphasis on state sovereignty and the idea that states can exert considerable control over the definition and who is admitted into their country. Although there have been subsequent amendments that seek to provide more protections to refugees such as Article 31 which states that individuals seeking asylum are not to be criminalized and arrested, Moldovan notes that states such as Australia have been able to violate these conventions and treat those seeking refuge as criminals on a consistent basis (Moldovan pp. 685-686). Yet there is no real enforcement measure to ensure that these states do not abuse basic human rights or seek to criminalize individuals genuinely appealing for help. This is a dilemma that has existed for quite some time, where international institutions such as the UN or the League of Nations have failed to protect basic human rights.

Giorgio Agamben noted how in human history when there have been mass refugee moments from the time of the First World War and the fall of the European empires, international organizations such as the League of Nations and the UN and national governments have failed to deal with these issues because they have seen the idea of extending basic rights to individuals defined as ‘’citizens’’ and not to humans themselves. Agamben speaks about the fundamental flaws that are associated with the idea of citizenship, as individuals who are caught between their old states and are unable to go back and new states that are refusing their entry. Individuals are therefore stateless and are not able to receive rights in any state (Agamben pp. 90-95). The result is that individuals are left without any sense of security and are made to feel like strangers in their own world because they are not given legal status. Agamben states that the idea of citizenship and the extension of human rights only to citizens is not a new concept and will remain for quite some time. It is an idea he cites as emerging around the time of the French Revolution from 1789 and has still been maintained, even after the fall of empires and the restructuring of the world after two destructive world wars. (Agamben pp. 90-95) One possible solution he proposes is that citizens not be tied to geography but those common areas of land are shared among peoples. He cites a possible solution over the issue of Jerusalem between Israel and Palestine, where instead of two peoples fighting over one contested area of territory, the city should be divided and governed equally by both peoples, where they share the territory and have a dual governance structure over the shared territory. (Agamben pp. 94-95). He notes that it was once common for peoples to live this way, where there were no states with hard borders but individuals living as human beings and living together as a large community.

5. Conclusion

Many theorists have agreed with Agamben and proposed that we could possibly shift back to that governance model. As to whether that will happen in reality is doubtful, as many individuals will likely not want to give up the idea of sovereignty that they have been used to for so long. Instead, a possibility could be to increase the power given to international institutions and to give them considerable more powers, such as the way the EU is structured. Even though there may be conflicts among the EU nations, scholars are in general agreement that the common union has been a success and has led to a growth in terms of economic prosperity and efficiency. Instead of 27 different labour standards or privacy laws, there is one law that is agreed upon by all of its members. The passage of the GDPR and its strong protections of individual privacy is proof that 27 otherwise very different nations can actually find common ground and develop a very strong data protection regulation.  If the same kind of powerful institution was envisioned at the global level and conventions such as the Geneva Declaration were enforceable, states such as Australia and the EU wouldn’t be able to pass draconian policies that favour citizens and shut out refugees, and there would be more accountability and protections for those who are the most vulnerable.

While the citizens of democratic nations mat are protected and may receive basic rights protections such as the right to privacy and to humane treatment, millions of refugees are treated on a second-tier and are denied these basic rights. To resolve this, a universal governing body should be established that can ensure that basic rights agreed to in international conventions can be enforceable. Only then will the rights of refugees be respected and will the idea of human rights exist in reality. 

Works Cited

Agamben, Giorgio. “Beyond Human Rights.” Social Engineering (2008): 90-95. Document.

Guild, Elspeth. Security and Migration in the 21st Century. Cambridge UK: Polity Press, 2009. Book.

McNevin, Anne. Contesting Citizenship. New York: Columbia University Press, 2011. Book .

Moldovan, Carmen. “The Notion of Refugee. Definition and Distinctions.” CES Working Papers (2016): 681-688. Document.

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