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By Stephen Gardner. The UK government's plans for a border-monitoring IT system have so far been, according to a recent National Audit Office report, a prime public procurement fiasco.

The best part of a billion pounds has been spent since 2003, largely on the now-terminated e-borders scheme, with little to show for it. Nevertheless, the government intends to press on with an e-borders successor scheme. A bigger problem could be looming, however: the scheme might be illegal under European Union law.

UK border surveillance relies heavily on the amassing of the data of travellers crossing the border and building up profiles of their movements. The system collects and retains everyone's data, not just that of actual or suspected miscreants. Privacy advocates say this can actually undermine security: it creates too much noise and is a poor substitute for proper intelligence sharing between security agencies.

According to two EU Court of Justice rulings, mass data collection is disproportionate and violates the EU Charter of Fundamental Rights. In April 2014, the court cancelled the EU data retention directive, which required internet and telecoms companies to store customer communication data and hand it over to the police on request. Subsequently, the UK High Court ruled that the government should rewrite the British law implementing the data retention directive.

Then, in October this year, the ECJ invalidated an agreement that allowed US companies to transfer the personal data of EU citizens to servers in the US – the court's reasoning was that there were no safeguards against the hoovering up of EU citizens' personal data by the US National Security Agency.

Britain's borders programme, in essence, does exactly the same thing: mass surveillance. In particular, the scheme collects airline passenger records. More than 80 percent of journeys into the UK are made by air.

The ECJ is due to deliver, probably next year, an opinion on an EU-Canada deal that allows Canada to amass the data of EU airline passengers. The court will say whether the agreement, like the data retention directive, flies in the face of the EU Charter of Fundamental Rights. A negative ECJ opinion would call into question the blanket collection and retention of the data of EU airline passengers – and could give the government even more of a headache than its border system IT failures and cost overruns.

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