Amanda Musco Eklund published the article ‘Rule of Law Challenges of ‘Algorithmic Discretion’ & Automation in EU Border Control. A Case Study of ETIAS Through the Lens of Legality‘ that is to be found  here (open access).

Subject of the article is the European Travel Information and Authorisation System (ETIAS) that will profile visa-exempt third-country nationals using a screening rules algorithm to make automated predictive risk assessments.

It is an interesting article because it can be assumed that making automated predictive risk assessments of citizens will not stop with people from outside the EU. This activity is also already taking place by companies with a crime-fighting role, such as banks (with even less legal protection than when the government undertakes such activities).

According to the abstract major legality challenges are identified:

The European Travel Information and Authorisation System (ETIAS) will profile visa-exempt third-country nationals using a screening rules algorithm to make automated predictive risk assessments. By using the screening rules algorithm as a case study, this article analyses if the ETIAS Regulation, and the legal safeguards it establishes for the decision-making process, comply with formal and substantive legality requirements as defined by the Venice Commission and the Court of Justice of the European Union. Three legality challenges are identified: [1] The regulatory design of ETIAS raises issues in relation to the foreseeability, clarity and accessibility of law, as well as insufficient limits to discretion. [2] The ETIAS screening rules algorithm represents a development towards a new form of arbitrariness through ‘algorithmic discretion’. [3] The safeguard of manual (human) processing in case of a ‘hit’ is not a panacea for the identified legality challenges.