Joint statement: Mexico, Guatemala, Honduras, El Salvador and the United States must terminate their agreements on cross-border transfers of migrants’ biometric data

Since 2013, Mexico has had a non-binding memorandum of cooperation with the United States, which allows for cross-border transfers of migrants’ biometric and other types of personal data. This agreement was updated in 2017. Guatemala, Honduras, and El Salvador have also had a similar agreement since 2014.

With the alleged purpose of improving the national security of the countries involved, these memoranda have paved the way for the criminalization of, discrimination against and surveillance of an often vulnerable population. This is a practice of externalization of US borders that not only invades migrants’ privacy but also promotes arbitrary decision-making, such as denial of entrance to the country or separation of family members.

With the support of local organizations, Access Now and the Red en Defensa de los Derechos Digitales (R3D) submitted freedom of information acts to reveal information about the use and actual effectiveness of the application of such agreements. Mexico’s response did not answer our main requests, while the Central American countries fully refused¹ to provide the requested information, citing concerns about national security, confidentiality or classified information. Meanwhile, the UN, OAS and OSCE Special Rapporteurs have condemned the abusive use of national security as an excuse to deny information, highlighting that it is necessary to justify such denial. This was not the case for the above-mentioned countries.

The vague language of these agreements, their broad scope and non-binding nature, and the lack of transparency from authorities, all promote the lack of accountability of the States and other actors involved. This makes it difficult to conduct human rights impact assessments, while it also perpetuates abusive practices that jeopardize migrants’ privacy and dignity.

This is why the undersigned organizations urge the Governments of Mexico, Guatemala, Honduras, El Salvador, and the United States to terminate their cooperation agreements until they include the necessary safeguards to protect migrants’ human rights.

In addition, if there are any agreements that involve processing migrants’ biometric data, we call on Governments to comply with the conditions listed below as a minimum:

• Prohibit migrants’ personal data processing unless there is a local law protecting personal data in each country that is a party to the agreements. Currently, the United States, Honduras, El Salvador, and Guatemala lack specific legislation on data protection. Abuses in processing such data rely on the interpretation of unspecialized authorities on this matter and without specific regulation, thus exposing the population to improper processing of their data. The lack of defined administrative processes also makes it difficult to ensure the rights of access, rectification, deletion, and objection related to their personal information. 
• Prohibit massive profiling of data subjects in migration and humanitarian contexts. Vague language in current agreements about the type and amount of processed data enables the creation of databases for profiling people. Such profiles might be used to assess the risk a person can pose for a State on the basis of arbitrary interpretations. Academics, civil society, and human rights experts, such as the former Special Rapporteur on contemporary racism, racial discrimination, xenophobia and related intolerance, have denounced the intrinsic bias in automated profiling systems. These practices go against the principle of presumption of innocence, the right to equality before the law, and non-discrimination.
• Prohibit the use of technologies capable of conducting “predictive” analyses in migration contexts. These technologies can lead to arbitrary decisions and, at times, to criminal consequences, when trying to predict potential irregular migration. This can threaten the human right to freedom of movement and increase violent situations at borders, which could even hinder asylum applications. “Predictive” technologies used in migration and humanitarian contexts also threaten the principle of presumption of innocence. While existing agreements do not explicitly refer to the use of such systems, and the lack of transparency from authorities does not enable us to verify this, they do not exclude them from their scope.
• Prohibit the use of interoperable systems with geolocation capabilities. Collecting and updating biometric data, aggregated data, and metadata in interoperable systems enables system users to surveil migrants and track their locations, which implies an abusive practice.
• Prohibit decision-making related to the migratory destination of a person based on automated or semi-automated systems. Like any other technology, these types of systems are not neutral. On the contrary, they are tinged with bias. Each person moving from one territory to another has a unique story. Subjecting them to automated decisions, or decisions with little human intervention that impact their movement possibilities -under the pretext of improving efficiency at borders- overlooks the nuances of their life experience, which could affect their opportunity to move freely and seek asylum, among others.
• Limit the number of agencies, actors, and people who have access to processed data. Current agreements give leeway for police and immigration authorities to share migrants’ personal data with other actors they deem appropriate according to each individual case. The processing of migrants’ personal data should not be discretionary, since all actors involved in data processing must be expressly mentioned or approved by a judiciary.
• Ensure special protection for children and adolescents. The Inter-American Commission on Human Rights (IACHR) states that children are a group that, being in development, needs special protections. Existing agreements do not refer to the exclusion of children from cross-border personal data processing. While the international exchange of certain types of data related to children can facilitate family reunions and humanitarian support in general, it is necessary to establish safeguards that limit, among others, the type of processed data and the amount of time it is stored.
• Ensure data subjects give their free and informed consent before the collection of their biometric data. As data subjects, migrants have the right to know the reason for and scope of the collection of their biometric data. This should be explained to them in simple language, in their mother tongue —or another language they can understand— and using no coercive practices whatsoever.
• Ensure the rights of access, rectification, deletion, and objection for data subjects. The OAS Inter-American Juridical Committee recognizes the rights to access, rectification, deletion, and objection as part of data subjects’ informational self-determination, as a means to preserve their “identity, dignity and freedom”. As this case is about people in transit, it is necessary for States to provide access to such rights without the need to be physically present in a precinct.

We remind the authorities from Mexico, Guatemala, Honduras, El Salvador, and the United States that the mentioned cooperation agreements related to exchanging migrants’ biometric and other personal data are non-binding, so they can be terminated by giving notice of termination to the other party. We urge states to comply with their human rights obligations and terminate such agreements.