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Table of Contents: I. Introduction – II. AI in the EU Large-Scale Information Systems: The Case of ETIAS and VIS – II.1. ETIAS and VIS within Interoperability – II.2. ETIAS and VIS automated processing – II.3. How will the ETIAS and VIS automated processing work in practice? – III. The ETIAS and VIS Automated Processing and the Legal Constraints of Decisions Based Solely on Automated Means – III.1. The general rule in Article 22 GDPR and Article 24 EUDPR – III.2. Condition I: The result of ETIAS and VIS automated processing: A decision that significantly affects data subjects? – III.3. Condition II: Safeguards for data subjects - IV. Conclusions
Abstract: In 2019, the EU laid down the groundwork for interoperability in the Area of Freedom, Security and Justice, envisaging the use of algorithmic tools that can qualify as AI systems under the AI Act. AI tools used by EU migration databases are subject to the safeguards and the protective measures for individuals provided for under the AI Act, such as art. 86 thereof. However, given the fundamental rights impact of AI technologies processing large amounts of personal data, it is worth focusing on data protection law as one of the main strongholds against violations caused by AI in EU border and migration systems. In this Article we apply data protection provisions on purely automated decisions and the Court of Justice’s case law to the AI-enabled processing envisaged under two information systems, ETIAS and VIS. This processing was conceived as a supporting tool for competent authorities. This Article argues that, despite aiming to avoid solely automated decisions, the ETIAS and VIS processing might inadvertently lead to automation “taking over” the decision-making process. By contrast, a substantive reading of art. 22(1) GDPR (and art. 24(1) EUDPR) should not only prohibit decisions taken without any form of human involvement, but also decisions based on meaningless human involvement. As a result, the ETIAS and VIS processing may progressively reduce the extent to which human caseworkers review and question the AI-generated recommendations. By analysing the implications of the AI-enabled processing envisaged in the current EU border regulation, the Article seeks to draw useful lessons for further adoption of trustworthy AI in the border and security ecosystem.
Keywords: artificial intelligence – automated decision-making – border management – etias – opacity – vis.
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European Papers, Vol. 9, 2024, No 3, pp. 1018-1047
ISSN 2499-8249 - doi: 10.15166/2499-8249/797
* Legal and policy assistant at the European Commission – Directorate-General for Migration and Home Affairs, lorenzogiuseppe.gugliotta@gmail.com.
** Legal researcher Centre for IT and IP Law (CiTiP), abdullah.elbi@kuleuven.be.
