Frontex and ‘Algorithmic Discretion’ (Part I) - The ETIAS Screening Rules and the Principle of Legality

Frontex and ‘Algorithmic Discretion’ (Part I) - The ETIAS Screening Rules and the Principle of Legality Musco Eklund, Amanda Author aut (orcid)0000-0002-9704-520X Text xx# 2022 Verfassungsblog 2022-09-10 eng This contribution, presented in two parts, offers a predictive glimpse into future rule of law challenges due to the European Border and Coast Guard Agency’s (Frontex) primary responsibility for the automated processing and screening rules of the soon-to-be-operational European Travel Information and Authorisation System (ETIAS) at the EU’s external borders. . In Part I on legality, I argue that the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness – which I refer to as ‘algorithmic discretion’. This can be defined as a situation where the exercise of power and discretion and their limitations are not sufficiently specified at the legislative level but are delegated to an algorithm instead. CC BY-SA 4.0 Musco Eklund, Amanda accountability Algorithmic Decision-making border control ETIAS Rule of Law 342 https://verfassungsblog.de/frontex-and-algorithmic-discretion-part-i/ Verfassungsblog 2366-7044 Max Steinbeis Verfassungsblog gGmbH 10.17176/20220910-110512-0 220910 10.17176/20220910-110512-0 Converted from MARCXML to MODS version 3.7 using MARC21slim2MODS3-7.xsl (Revision 1.140 20200717)