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European Union: Legitimacy of Access to Fingerprints by Law Enforcement Authorities Questioned

(Oct. 30, 2009) On October 8, 2009, Peter Hustinx, the European Data Protection Supervisor (EDPS), issued an opinion regarding two legislative proposals of the European Commission that would grant law enforcement authorities access to fingerprints stored in the European Dactyloscopie (EURODAC) system. The purpose of access would be to prevent, detect, and investigate potential terrorist acts and other serious crimes. (Press Release,EDPS, Law Enforcement Access to EURODAC: EDPS Expresses Serious Doubts About the Legitimacy and Necessity of Proposed Measures,RAPID(Oct. 8, 2009), available at

EURODAC is a database designed to store fingerprints of asylum seekers and those over the age of 14 who cross the borders of a European Union (EU) Member State illegally. The system is used primarily by national authorities to find out whether asylum seekers have already applied for asylum in another Member State or have illegally crossed the borders of another Member State. The database contains not only fingerprints, but also other information, including gender and a reference number. Normally, data are retained for ten years in the case of asylum seekers and two years for those illegally crossing the borders. (Regulation No. 2725/2000 Concerning the Establishment of 'Eurodac' for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, 2000 OFFICIAL JOURNAL OF THE EUROPEAN UNION (L 316) 1, available at

The EDPS has recognized the necessity to achieve a fair balance between the need to protect the public and the need to safeguard the right to privacy and data protection as enshrined in EU and Council of Europe legislation. The EDPS concluded that the proposals failed to meet the standards of necessity and proportionality, which are both critical standards in allowing intrusions of privacy. The EDPS also expressed concern that the data are collected for other purposes and that the individuals involved are not suspected of any crimes. Hustinx also emphasized that the proposals must provide evidence of a nexus between asylum applicants and terrorists, in order to justify access to EURODAC by law enforcement authorities. Finally, he suggested that the proposals be postponed in light of ongoing discussions about possible amendments to the system. (Press Release, supra.)