‘Bio-bordering’ processes in the EU: de-bordering and re-bordering along transnational systems of biometric database technologies

392 I nt. J. M igration and Borde r Studies, Vol. 5, No. 4, 2019 Copyright © 2019 Inderscience Enterprises Ltd. ‘Bio-bordering’ processes in the EU: de-bordering and re-bordering along transnational systems of biometric database technologies Nina Amelung* and Helena Machado Communication and Society Research Centre (CECS), University of Minho, R. da Universidade, 4710-057 Braga, Portugal Email: Nina.amel[email protected] Email: [email protected]inho.pt *Corresponding author Abstract: Biometric data is increasingly flowing across borders in order to limit and control the mobility of selected people not only for migration control but also for crime control. The promise is that while data is mobilised, those declared outlaws will be immobilised. In this article, we discuss reverse patterns of bordering and ordering practices linked to large-scale transnational biometric database infrastructures. We introduce the concept of bio-bordering, using it to capture how the territorial foundations of national state autonomy are partially reclaimed and, at the same time, partially purposefully suspended when establishing biometric data exchange. The case of the Prüm system, the mandatory exchange of forensic DNA data amongst the EU member states, serves to portray instances of overcoming and enforcing bio-borders for data flows. Firstly, we explore the different logics of creating permeable bio-borders at work at the EU level which derive from EU attempts of integrating legal, scientific, technical and organisational dimensions. Secondly, we take the Portuguese case as an illustrative example of how latently reinforcing bio-borders counters the ambition of expansive data exchange. Keywords: bio-bordering; re-bordering and de-bordering; modes of ordering; forensic DNA data exchange; border regimes; European Union. Reference to this paper should be made as follows: Amelung, N. and Machado, H. (2019) ‘‘Bio-bordering’ processes in the EU: de-bordering and re-bordering along transnational systems of biometric database technologies’, Int. J. Migration and Border Studies, Vol. 5, No. 4, pp.392–408. Biographical notes: Nina Amelung is a Post-doctoral Research Fellow with the ‘EXCHANGE – Forensic Geneticists and the Transnational Exchange of DNA data in the EU: Engaging Science with Social Control, Citizenship and Democracy’ project, funded by the European Research Council, led by Professor Helena Machado and based at the Communication and Society Research Center (CECS), University of Minho, Portugal. Her current research is on the democratic challenges of cross-border biometric data-exchange, and explores the making of publics in European crime, migration and border control regimes. She applies perspectives offered at the intersection of science and technology studies and political sociology. ‘Bio-borderin g ’ processes in the EU 393 Helena Machado is a Full Professor of Sociology at the University of Minho, Portugal. In 2015, she was awarded a Consolidator Grant from the European Research Council (ERC) to conduct research into the societal, ethical, and political challenges posed by transnational exchange of forensic DNA data in the context of policing and judicial cooperation in the EU. She is presently studying the interrelationships between genetic surveillance, public trust and national identities. This paper is a revised and expanded version of a paper entitled ‘The making of invisible ‘bio-borders’ in the EU. Implications on configuring categories of risk in Portugal’ presented at Workshop ‘Bordering – A View from Portugal Migration and Border Making in Portugal’, Universidade Nova, FCSH, Lisbon, 14–15 December 2017. 1 Introduction Cross-border surveillance and data sharing for law enforcement are vital elements of the European Union (EU) systems in the area of freedom, security, and justice. In the last decades, EU surveillance practices have rapidly expanded with the creation of large-scale information technology (IT) database systems. The Schengen information system (SIS), the EURODAC database, the common visa information system (VIS), the Prüm system and, more recently, EUROSUR1 are prominent examples. IT is used to collect, store, compare and exchange diverse kinds of data. These intelligence networks are a result of the EU’s policy of interoperability (Broeders, 2007), designated to enforce the practicable exchange of data between national and EU databases (Curtin, 2018). Preventing and investigating cross-border crime (i.e., terrorism, human trafficking, drug smuggling and illicit arms traffic) has been, at the discursive level of policy formation, the main driving force and justification for most of these crime investigating regimes [Aas, (2011), p.337]. Although practically all of these technologies aim to track and control mobility, some of them – such as the Prüm system – are intended primarily to support transnational criminal investigations (Machado and Granja, 2018). This article explores the ambiguities of borders in cross-border data exchange. On the one hand, borders become permeable for effective and expansive data flows in the name of increased security and the control of selected people’s mobility. On the other hand, member states enforce their territorial borders with logics that serve their citizens, for example, to protect national data subjects and to be accountable to national electorates. The development of transnational systems for the mass exchange of biometric data2 at and across borders has challenged conventional notions of borders. Traditional border studies assumed state and territory borders were both fixed and the physical outcome of political, social or economic processes (Kolossov and Scott, 2013). In this paper, we suggest a perspective that takes into consideration the contingencies that derive from the practices found among heterogeneous actor networks involved in bordering practices of referring to the nation-state. 394 N. Amelung and H. Machado We follow impulses from border studies that have turned to approaches that understand borders not as given, but as continuously ‘being made’ and involving b/ordering practices (van Houtum et al., 2005; Kolossov and Scott, 2013). By understanding borders as emerging through socio-political as well as techno-scientific processes, the emphasis lies in understanding bordering as taking place within society (Kolossov and Scott, 2013). We build on a notion of state borders that understands them as elastic, dynamic and situated processes, multiplied and enforced by the various practices of multiple actors and institutions far beyond their physical sites. We use that notion of elasticity of borders also to demonstrate that border regimes for digital biometric data are distinct from border regimes for people. Therefore, we argue that it is essential to rethink earlier conceptual approaches that take the emergence of digital and biometric borders as a static, functional given, built on the ‘sharply bounded territorial containers associated with classical modernity’ (van Houtum et al., 2005). These classical approaches tend to consider the virtual and digital dimension only as a new form of communication (Löw and Weidenhaus, 2017), and biometrics as an efficient identification mechanism for creating ‘smart borders’ (Lehtonen and Aalto, 2017). In order to contribute to improving the conceptual apparatus beyond the world of fixed, contained state borders, we introduce the concept of ‘bio-bordering’. We use it to explore the modes of ordering biometric data applied in criminal investigation that have consequences for people of suspicion moving across nation-states’ borders. The consequences we consider here are those which derive from storing and exchanging data from individuals, who then become data subjects, with – as we show in our article – differently granted rights across national regimes. The concept focuses, first, on biometrics as an inherently classifying and thus boundary-making mechanism when identifying selected ‘risky’ people. Furthermore, the concept links to the ‘bio’ prefix a notion of borders that assumes ‘distributed agency’ in heterogeneous networks that include security professionals and biometrics experts enacting, overcoming or reinforcing nation states’ borders along biometric data in unexpected manners. We argue that the concept of bio-bordering is particularly useful in trying to understand the modes of ordering entangled with transnational large-scale IT database infrastructures for the exchange of biometric data in the context of crime control3. We portray the bio-bordering processes in the EU as contributing simultaneously to what Misa and Schot (2005, p.3), reflecting on technological infrastructures, have called the ‘hidden integration’ and ‘hidden fragmentation’ of Europe. Using the lens of technology, the authors situate European integration as an emergent outcome of a contested process of linking and delinking of infrastructures, as well as the circulation and appropriation of artefacts, systems, and knowledge, which produces integration and fragmentation at the same time (ibid). In the case of biometric technologies in the area of freedom, security, and justice, the hidden integration takes place through the standardisation and homogenisation of biometric scientific standards, as well as through technical and operational infrastructures, which thereby establish a transnational forensic technocracy (Prainsack and Toom, 2010). Yet, we explore in this paper also the processes of hidden fragmentation that result from the establishment of rigid bio-borders that are only selectively permeable for data flows and thus counter the ambition of expansive biometric data exchange. This fragmentation is materialised in forms of heterogeneous national regimes regulating data protection and mechanisms to hold biometric cross-border data exchange accountable to the public. ‘Bio-borderin g ’ processes in the EU 395 We discuss in this paper the example of the Prüm system, designed for the transnational exchange of DNA data for forensic and police use. Furthermore, we present the political attempts to secure the unhindered flow of biometric data among the member states that are mobilising a mode of ordering aimed at diminishing technical and legal obstacles. Then we discuss the case of Portugal, which employs a protective bio-borders mode of ordering concerning its forensic DNA database and its approach to making DNA data accessible for transnational exchange. Thereby, we explore the regulatory, material and organisational contingencies that derive from the national context and the ambiguities and tensions that derive from contradictory bio-bordering dynamics. The article begins by outlining the notion of bio-bordering by reflecting on insights from recent developments in border studies. The article then introduces the transnational DNA data exchange system regulated by the Prüm system and portrays how political and regulatory ambitions have translated into permeable bio-borders. We then proceed to explore the situation in Portugal, as an example of how national arrangements result in the latent re-bordering of bio-borders. In the conclusion we discuss how, by making invisible bio-borders visible, our approach helps to uncover the implications of multiple processes of overcoming and enforcing bio-borders in the context of the hidden fragmentation related to contemporary security policies in the EU. 2 Theorising bio-borders and the de(b)ordering and re(b)ordering of bio-borders Acknowledging the increased use of biometric technologies has forced scholars to reconsider ‘the border’ in contemporary political life. Biometrics provides the ground for sorting and classifying individuals and groups into legal/illegal or welcome/unwanted persons, and for controlling migration by filtering desired and undesired mobility (Amoore, 2006; Aas, 2011). The inclusion/exclusion dichotomy and the processes of othering have been of high relevance in border studies, which aims to provide clarification and more in-depth understanding of the inherent dynamics and ambivalent qualities of such categories and their primary ordering ability to make boundaries (Dijstelbloem and Broeders, 2015). Biometric technologies are also being used to help control transnational crime and identify transnational suspects ‘in light of fears of an “escalation of cross-border crimes”‘ (Prainsack and Toom, 2010). The ability of biometric technologies to transform the body’s characteristics into digital codes that can be ‘read’ by a machine (Aas, 2011; van der Ploeg, 1999) means that biometric data can be stored in large databases. Biometrics and databasing together have a secondary ordering ability to track mobile bodies across borders for surveillance purposes. Digital borders have been characterised by Dijstelbloem and Broeders (2015, p.23) as a ‘new form of mobility control’, one which combines the function of ‘politics at a distance’ (Latour, 1987, 2005) with ‘virtual data collection’ to result in ‘a logic of the extraterritorial net of control’ [Tsianos and Karakayali, (2010), p.374]. Tsianos and Kuster (2016) examine the example of Eurodac, which they not only understand as a technological border but as inflected by social, symbolic, organisational and juridical cultures, practices and imaginaries that are beyond the literal realm of the electronic space. The current technological mediation of borders requires the labour of software developers, designers, engineers, infrastructure builders, border guards, systems experts, 396 N. Amelung and H. Machado and many others, all of whom help produce digital borders (Vukov and Sheller, 2013). We propose that we need an approach that aims to take both biometrics and digitalisation equally seriously. We introduce the term ‘bio-border’ to explore how the establishment of transnationally applied biometric technologies – which comes explicitly with the regulation of how biometric data may (not) cross borders – produces implicitly a multiplicity of historically contingent and intentional re-ordering processes that partially overcome and partially reinforce nation states’ territorial borders through bodies, data, and technology. The particularity of such border-crossing modes of ordering lies in their attempts to track the mobility of certain people across state borders in the context of crime control, or to identify people related to crimes, including victims and missing persons. The implicit assumption is that the more data is exchanged, the more useful it is. In addition, the expected benefit of such technologies is to guarantee the security of societies. On the one hand, transnational biometric technology systems are enacted as attempts to expand biometric data exchange and establish ‘borderlessness’ for data flows and to overcome the logics of nation state boundaries. The aim of such border-crossing modes of ordering is to diminish technical, scientific, operational and legal obstacles, resulting in increasingly permeable bio-borders. On the other hand, the nation state’s situated modes of ordering may reclaim the territorial foundations of the state’s autonomy through the creation or maintenance of its own systems for collecting, sharing and protecting biometric data. Such systems thereby remain contingent on their own historically and culturally shaped political-judicial path of biometric technology and database development. Bio-borders are understood, in the first place, as historically grown boundaries separating different national systems of biometric data collection. In order to allow biometric data to cross a nation state’s territorial borders, bio-borders need to become reordered and constructed in a way that interconnects national infrastructures of regulatory, biometric, IT and organisational dimensions dedicated to the retention of biometric data. The ambition to create expansive biometric data exchange requires what we call the de-bordering of the historically grown bio-borders, that is, making bio-borders permeable and data available across borders. At the same time, when confronted with requirements to make their data available, actor networks in the member states respond by raising a diverse range of concerns over data protection, technical-infrastructural problems, and the need to install appropriate safeguards and oversight to prevent malfunctions of the data-exchange systems. In consequence, member states may create conditions that reinforce bio-borders, what we call re-bordering, by making them only selectively permeable and by putting data border-crossings under stricter regimes of control. Two clarifications on our understanding of re-bordering in this article are essential. First, re-bordering can be enforced through interactions with biometric techno-scientific and IT databasing infrastructures. Second, re-bordering is not necessarily a deliberately coherent and intentional process designed by the whole actor-network to close bio-borders; instead, it can be an ambiguous process deriving from the intentions of some actor groups with specific concerns, while other actor groups are committed to contributing to expanding data exchange. ‘Bio-borderin g ’ processes in the EU 397 In this paper, we take inspiration from Johnson et al. (2003, p.26). The authors focus on four constitutive components of national criminal DNA databases and data exchange flows across them. First, the regulations, legislative frameworks and governance principles of the countries sanctioning the collection, use and retention of DNA data, including data protection regimes. Second, DNA technology, including the scientific knowledge that DNA technologies build on, material artefacts and biological resources like samples and paperwork, and methods for the representation of DNA variation in the form of standardised individual profiles that can be compared. Third, the technical database infrastructure necessary to digitally store and compare data, and the definition and management of which data categories are and are not made accessible for data exchange. Fourth, the organisational imperatives and principles, such as reliability, transparency and public accountability, which translate into work routines that include taking biometric samples, inputting data, reporting hits, following up correspondence in case of matches, and providing transparent and publicly available statistics. In consequence, we understand bio-borders as constituted and configured by the following border infrastructures: legal and regulatory, techno-scientific biometrical, IT database and organisational particularities. Together they create boundaries around national regimes of biometric-data retention and distinguish them from others. In order to study bio-borders we propose to focus on the simultaneous multiple processes carried out by a heterogeneous actor-network of regulators, security professionals, forensic technocratic experts, and other criminal justice systems’ stakeholders involved in national biometric-data collection and retention and in operational data exchange who jointly contribute to the reordering and remaking of bio-borders. Our perspective is distinct in that it shifts understanding away from notions of the EU or the member states as coherent rational and intentionality driven actors towards the distributed, yet collective, agency of a heterogeneous set of actors with different – potentially even conflicting – co-existing nation-state referencing rationalities. These actors include those involved in the technoscience of biometrics (Latour, 1987). In sum, bio-bordering practices produce a particular outcome with concrete consequences for targeted people, data subjects and those whose data gets exchanged on the one hand and for societies’ security on the other. There is a methodological problem in the attempt to investigate how data mobility produces such consequences because there is little public data available about how these new types of data-exchange systems impact on the mobility of targeted people and actual data subjects. For instance, there is little information on the impact of such systems on deterring criminals, and we also know little about actual improvements to societies’ security (Toom, 2018). In the following, we explore the bio-bordering processes between the EU and Portugal, focusing, in particular, on the Prüm system, which regulates the transnational exchange of DNA data for forensic and police use in the EU. First, we illustrate the EU’s efforts to guarantee the establishment and implementation of the Prüm system in all participating EU member states. We portray it as a mode of ordering that results overall in making bio-borders permeable for expansive data exchange across the member states. Second, we choose to portray Portugal as a case in which bio-borders are latently enforced. It happens through a process in which the requirements of the respective EU regulations are fully implemented, while the ways of making biometric data accessible are defensively and restrictively ordered. 398 N. Amelung and H. Machado 3 De-bordering at the EU level The Prüm Treaty (Council of the European Union, 2005) aimed to establish a framework to simplify, coordinate and improve the circulation of information between the EU member states’ law enforcement agencies. Specifically, the Treaty aimed to intensify cross-border cooperation through the automated exchange of information – namely DNA profile data, fingerprints, and vehicle registration data – between the member states. After the Treaty was incorporated into the EU’s legal framework on 23 June 2008, through Decisions 2008/615/JHA and 2008/616/JHA (Council of the European Union, 2008a, 2008b), all member states were obligated to build and maintain the technical infrastructure needed for the implementation of DNA databases. They were also required to enact adequate legislation to set up the operational requirements needed to establish connections with other member states and exchange data (Sallavaci, 2015, 2017). In the EU, DNA databases are mostly dedicated to the storage of DNA profiles collected for criminal investigation purposes, although some also serve the purposes of civil identification, for example, in cases of missing persons or mass disasters (Williams and Wienroth, 2014). The mode of ordering of bio-borders here implies the enabling and facilitation of biometric and personal data flows across the EU member states, to identify mobile persons suspected of crime or terrorism. In order to enforce a de-bordered version of bio-borders, in 2016 the European Commission also used the instrument of the infringement procedure. This instrument formally communicated to certain countries – Portugal, Italy, Croatia, Greece and Ireland – that they were not in compliance with the Prüm’s rules. These rules outlined that member states’ regulations and technical infrastructures should allow and enable other member states to search DNA analysis files, fingerprint identification systems, and vehicle registration databases. The European Commission highlighted that the Prüm Decisions should have been implemented fully by the member states by August 2011, and that these member states had not yet ensured automated data exchange in at least two of the three types of data. Given that the Treaty of Lisbon4 gave the Commission full enforcement powers in the field of police cooperation and judicial cooperation in criminal matters, countries like Portugal, Croatia, Italy, and Ireland would need to comply in order to avoid the case being referred to the Court of Justice of the European Union (Commission of the European Union, 2016). While the Prüm Treaty and Decision made it mandatory for EU member states to have a forensic DNA database and to be able to exchange DNA data with as many other member states as possible, advocates of diminishing bio-borders also have an interest in the overall expansion of the biometric data available for exchange. In this regard, the European Network of Forensic Science Institutes [ENFSI DNA Working Group, (2017), p.7], as a central player in the European epistemic community of forensic genetics contributing to the de facto harmonisation and standardisation of technical and scientific standards and protocols across Europe, recommends that: To increase the chance of identifying the donors of stains, the number of persons in a DNA database who are likely to be the donors of those stains should be as large as legally (and financially) possible. Connecting member states’ DNA databases brings in diverse contingencies, some of which derive from the diverse legal traditions and regulations governing forensic DNA databases among the member states. According to Santos et al. (2013), we find two main tendencies: On the one hand, an ‘expansive’ group of countries that have few restrictions ‘Bio-borderin g ’ processes in the EU 399 on the inclusion of profiles combined with long periods of retention. On the other hand, a ‘restrictive’ group of countries, where the criteria for inclusion include suspicion or conviction of particular crimes, the length of any potential prison sentence, or a decision by a magistrate, and where retention periods tend to be smaller than in the first group (Santos et al., 2013). In spite of the ECHR’s decision in favour of data protection for individuals, views on data protection depend on member states’ policy agendas. In consequence, the diversity of approaches have implications for the (in)equality of conditions for the exchange of DNA data. The different criteria for inclusion and exclusion across the EU member states create unequal consequences for targeted people and data subjects. It creates a situation where it is possible that a DNA profile from an individual legally included in the database of one country is compared against the database of another where the legal regime would not have allowed its inclusion (Santos, 2017; Wilson, 2016). Another contingency regarding such modes of ordering comes with the biometric technologies at stake. Although minimum technical/scientific standards have been established, applied DNA technologies remain prone to error, and the production of adventitious hits – so-called false positives (Van der Beek, 2011) – is a risk. ENFSI DNA Working Group (2017, p.30) warns: As DNA databases become larger, the chance of adventitious matches occurring also increases, especially with partial and mixed profiles and the DNA profiles of relatives, which have higher random match probabilities. Although safety measures have been installed to minimise the risk, the EU Commission continues to admit there is a problem with false positives. As part of ‘Step 2’, which is the follow-up procedure to a match and involves the exchange of personal data, of the Prüm system, the Commission has made recommendations about procedures that the member states should carry out before personal data is exchanged. Yet, tackling the problem through recommended procedures delegates the responsibility to member-state-based DNA laboratories and National Contact Points, each of which has varying access to staff resources, and different working routines and ethics (Machado and Granja, 2018; Taverne and Broeders, 2015). Forensic practitioners operating the Prüm system view the risk of false positives as ethically problematic because there is a lack of procedures for establishing the criteria for both reaching agreements and resolving disputes about what constitutes a reliable match both at local level and between different member states (McCartney, 2014; Machado and Granja, 2018). Computing technologies are required to digitally store and compare DNA data. These technical database infrastructures bring together the distribution of particular ontologies that emphasise a numeric view on data exchange and highlight a notion of success measured by the quantitative amount of hits resulting from the comparison of DNA profiles across countries (Prainsack and Toom, 2010, 2013). Forensic geneticists involved in data exchange aim to enable a productive data flow – measured by the number of relevant connections with other countries and the creation of a relevant number of hits (Machado and Granja, 2018). However, this aim faces two challenges. First, being decentralised, it is difficult for the Prüm database system to trace information on any ‘success’ measured in terms of a subsequent effective criminal investigation. Besides, member states are differently connected (Santos and Machado, 2017): not only does the number of overall connections across particular member states differ, but the data categories classifying the type of DNA profiles exchanged across the member states vary enormously. Data categories related to the DNA profiles being exchanged within the 400 N. Amelung and H. Machado Prüm system cover a wide range from convicted persons, suspects, crime stains, victims, unidentified persons, unidentified human remains, missing persons, relatives of missing persons and others (see Table 1). Table 1 Categories of data and how member state restrict or allow access for automated data exchange Data category Countries using category Number of countries using category ‘crime stains’ BE, BG, CZ, DK, DE, EE, EL, ES, FR, CY, LV, LT, LU, HU, MT, NL, AT, PL, PT, RO, SI, SK, FI, SE, UK, NO 26 ‘suspects’ BE, CZ, DK, DE, EE, EL, ES, FR, LV, LT, HU, MT, NL, AT, PL, RO, SI, SK, FI, SE, NO 21 ‘convicted’ persons BE, BG, CZ, DK, EE, ES, FR, CY, LV, LU, HU, NL, AT, PT, RO, SK, FI, SE, UK, NO 20 ‘unidentified human remains’ BG, CZ, DK, DE, EE, ES, FR, CY, HU, NL, AT, PL, RO, SI, SK, UK 16 ‘unidentified persons’ CZ, EE, ES, FR, CY, LV, LT, MT, NL, AT, PL, RO, SK 13 ‘missing persons’ CZ, DK, EE, LV, NL, AT, PL, RO, SI, SK 10 ‘relatives of missing persons’ SI 1 ‘victims’ SK 1 Source: Own composition based on Council of the European Union (2018) According to the information provided by the Council of the European Union at the beginning of 2018, Portugal and Luxembourg allow the other member states the least access to their data in terms of data categories (Council of the European Union, 2018). They only provide access to two categories of data: DNA profiles of ‘convicted’ and ‘crime stains’. Other operational countries share three or more data categories. The most common categories exchanged with other countries are: ‘suspects’ (shared by 21 out of 27 countries); ‘crime stains’ and ‘convicted’ persons (shared by 20 out of 27 countries); and ‘unidentified human remains’ (shared by 16 out of 27 countries). There is also diversity in how each member state organises the work of data exchange. This diversity is then also expressed in the practices related to the follow-up correspondence when matches occur. Processes also take place very differently because of the diverse range of authorities involved – from judicial authorities to police forces – given custody of particular entities within the national DNA databases. In the vast majority of the member states involved in the Prüm system, the Ministry of the Interior (which is occasionally called Ministry of Internal Affairs or Home Affairs) has custody of the database. However, in some member states – Belgium, Netherlands, Portugal, and Sweden among them – the DNA database is in the custody of the Ministry of Justice, which is in charge of organising the justice system and overseeing the public prosecutor. Previous studies indicate that transnational cooperation between police forces tends to be faster and less restrictive in terms of data protection than cooperation between the judicial authorities of different countries (McCartney, 2017; Perras, 2017). ‘Bio-borderin g ’ processes in the EU 407 Santos, F. and Machado, H. (2017) ‘Patterns of exchange of forensic DNA data in the European union through the Prüm system’, Science & Justice, Vol. 57, No. 4, pp.307–313. Santos, F., Costa, S. and Machado, H. 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(Eds.): The Right to Know and the Right Not to Know. Genetic Privacy and Responsibility, pp.71–84, Cambridge University Press, Cambridge. Wilson, T. (2016) ‘Criminal justice and global public goods: the Prüm forensic biometric cooperation model’, The Journal of Criminal Law, Vol. 80, No. 5, pp.303–326. 408 N. Amelung and H. Machado Notes 1 SIS is used by 31 European countries to find information about individuals and entities for national security, border control and law enforcement. A second technical version of this system, SIS II, has existed since 2013.Eurodac is the European Union’s fingerprint database for identifying asylum seekers and so-called irregular border-crossers. VIS is a database containing information, including biometrics, on visa applications by Third Country Nationals requiring a visa to enter the Schengen area. The Prüm system enables the signatories to exchange data regarding DNA, fingerprints and vehicle registration of persons of concern and to cooperate against terrorism. Eurosur is an EU surveillance system that uses drones, reconnaissance aircraft, offshore sensors and satellite remote sensing to track illegal immigration into the member states of the European Union. 2 The term ‘biometric data’, in the context of criminal investigation, pertains to data derived from the analysis of a range of physical or biological characteristics of a person [Nuffield Council on Bioethics, (2007), p.5], which may include DNA, fingerprints, iris scans, photographs or images on CCTV cameras. 3 In this article we focus at biometric data exchange and its implications for understanding borders in the context of crime control. Scheel (2013) has used the term of ‘biometric rebordering’ in the context of biometric based migration control to explore how migrants develop forms of appropriation to biometric borders. 4 The Treaty of Lisbon, which entered into force in December 2009, is an international agreement that amends the two treaties which form the constitutional basis of the European Union: the Maastricht Treaty (1993) and the Treaty of Rome (1957). The Treaty of Lisbon aimed to give stronger powers to the European Parliament, and it was signed by all EU members. Opponents of the Treaty of Lisbon argued that it would centralize the EU and weaken the national parliaments. 5 In line with previous regulations, Portuguese criminal law development follows its distinct logic. The designation ‘arguido’ (an official suspect) gives status to an individual who has been formally charged or is under investigation. It provides certain rights, such as knowing the details of charges, but it also comes with obligations, such as the provision of a simple statement of identity [Machado and Prainsack, (2012), p.39].