As a (socio-)legal scholar interested in the world of borders and migration, I always feel rather inapt when people ask me about the ‘technological dimension’ of bordering. This dimension, although extremely central and crucial to understanding current day bordering practices both from a legal and an empirical point of view, seems to be an area that requires specific expertise that I do not have. Therefore, I am always on the lookout for articles to fill in this gap. Finding Valeria Ferraris’ article that not only touches upon the legal and technological aspects of the digitization of borders in Europe but that also reflects upon this development through a more sociological lens felt like finding a little gem that allowed me to feel updated on this ever-moving and developing sub-area of border studies. And, as is often the case, the article shows how, for legal scholars, it is also crucial to get an insider view and understanding of the workings of the law in practice. With developments in the world of data and technology moving so rapidly, it is important to keep track on whether the law – and in particular legal protection – is moving at a similar speed.
The article brings together the author’s multiple year-studies of the transformation of border control practices into practices driven by data processing and guided by all sorts of technologies. The article adds to that existing line of research an interesting new take on the concept of border performativity as used by Wonders in her 2006 publication Global flows, semi-permeable borders and new channels of inequality: border crossers and border performativity. As Ferraris explains, while citing Wonders, the concept of border performativity aims to ‘explain how borders are not only geographically constituted, but are socially constructed via the performance of various state actors in an elaborate dance with ordinary people who seek freedom of movement and identification. This dance is not only choreographed by state policies and laws, but it is also increasingly shaped by larger global forces’(P. 5, citing Wonders 2006: 64). Whereas the notion of border performativity has been used and reflected upon by various scholars working in the ever-expanding domain of border and migration studies, Ferraris adds to the existing literature by investigating ‘how data transforms both the State and the migrants’ border performance’ (P. 5).
Before discussing some of the author’s findings, I want to highlight one of the other aspects of the article that deserves special appreciation. In the section ‘Methodological background’ the author explains how the current article came into existence: It is the result of looking at data that had been collected through desk research and field work for different projects in a different, more reflexive, way. As the author explains on page 3, this new way of looking at her ‘old’ (as in: previously collected for different projects) data, allows her to critique her previous research experience and, in so doing, “1) to go beyond the focus upon the risks for fundamental rights of the digital border control which has been at the core of my previous research, 2) to shed light on the crucial point of this article, namely, the challenges of the new datafied migrant to transform the border from below, and 3) to find new insights for further research questions.” It is very valuable for fellow researchers to see how the author made the turn from, or perhaps better said added a perspective to, a more legal understanding of the digitization of migration and border control. Apart from showing the additional level of complication that needs to be brought into legal discussions on bordering practices to fully grasp the implications of the increased use of data and technology, it also illustrates the value and the importance of re-using empirical data that was collected with (an) other question(s) in mind.
While giving a state-of-the-art overview of the broad range of technological ‘barriers’ that have been erected in Europe to ‘manage’ the mobility of people, the article illustrates how the walls of Fortress Europe might be invisible to the outside world, but in reality, very present through a wide array of ‘systems’ filled with a broad variety of data on individuals, their migration journeys, biometrics, etc. Although the idea of an actual wall following the US-Mexico example is currently being debated as well, it is clear that whereas such a wall would be largely symbolic, the data-walls around Europe are very real in the role that they play in social sorting processes.
In reflecting on the impact of technology on border performativity, Ferraris specifically highlights the impact of the growing interoperability of migration databases which she sees as the ‘final step towards the EU technology-driven borderscape’ (P. 6). Whereas many of the IT systems used as part of this borderscape were developed separately for narrow and specific purposes and with a narrow focus on migration control, Ferraris shows how this has drastically changed over the years. The databases have become multi-purpose databases used interchangeably for migration control and border control, as well as for reasons of crime control. This raises a set of questions regarding the legal protection and access to justice of people on the move who get captured in the maze of this digitized net of social control.
Yet, besides this Ferraris raises the interesting question what this means for the possibility to ‘transform borders from below’. As a result of the ‘datafication’ of migrants, there seems to be even less room for humanizing migrants, as well as less room for pushing back against ‘the system’ which no longer relies on the actions of human beings but more so on the assessments, calculations, and interpretations of technological devices. The system is no longer the bureaucratic apparatus in which street-level bureaucrats, while using their discretion, can be seen as the real policy makers, but an IT system where ‘Computer’ says either ‘Yes’ or ‘No’. This new ‘data border’ raises new legal questions and challenges that, according to the author, will require migrants to seek the assistance of legal experts that are not only versed in migration law, but also in matters of data protection, and who have a solid understanding of the workings of these complex systems. Although the author thus foresees less legal pushback – on an individual case-law level – against the new data-border around Europe, she does end her rather dystopian analysis with the open question whether ‘failure and loopholes in the implementation of the interoperability between systems could provide room for manoeuvre’ (P. 14). The answer to that question remains to be seen. Yet, asking the question is also to be seen as a call for further research not only into the legal reality of the digital border, but to also carefully study its practical implementation.
