Preventing unlawful profiling today and in the future : a guide.
Date: 2019-01-25
Institutions: European Union Agency for Fundamental Rights
Subjects: European Union Agency for Fundamental Rights, anti-discriminatory measure, case study, data protection, digital technology, protection of privacy, user guide

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HANDBOOK

Preventing unlawful profiling 
today and in the future: 
a guide

      
 
 
 
 
 
 
 
 
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Preventing unlawful profiling 
today and in the future: 
a guide

Contents
ABBREVIATIONS AND ACRONYMS  ..........................................................................................5
INTRODUCTION ...............................................................................................................................7
SUMMARY OF THE MAIN POINTS ...........................................................................................10
1  SETTING THE SCENE: WHAT IS PROFILING? ...................................................................15
Defining profiling ....................................................................................................15
1.1.1.  Profiling in the context of law enforcement and border management .......17
1.1.2.  Defining algorithmic profiling ..................................................................................19
1.2.  When is profiling unlawful? .................................................................................23
1.2.1.  The prohibition of discrimination ............................................................................24
1.2.2.  The right to respect for private life and the protection of personal data ....31

1.1. 

1.3.  What are the potential negative impacts of unlawful profiling for 

law enforcement and border management? ..................................................38
1.3.1.  Impact on trust in the police and border management and good 

community relations ..................................................................................................39
1.3.2.  The effectiveness of profiling  .................................................................................49

2.1. 
2.2. 

2  LAWFUL PROFILING: PRINCIPLE AND PRACTICE ..........................................................53
Respecting individuals’ dignity ...........................................................................55
Reasonable and objective grounds ....................................................................59
2.2.1.  Avoiding bias ................................................................................................................59
2.2.2.  Clear guidance to officers .........................................................................................60
2.2.3.  Targeted training .........................................................................................................62
2.2.4.  Reasonable grounds for suspicion: making use of intelligence and 

2.3. 

information  ..................................................................................................................68
2.2.5.  Stop and search forms for law enforcement profiling ......................................75
Accountability ..........................................................................................................79
2.3.1.  Internal monitoring .....................................................................................................81
2.3.2.  Body-worn cameras ...................................................................................................85
2.3.3.  Complaints mechanisms ...........................................................................................91

3.1. 

3  ALGORITHMIC PROFILING ...................................................................................................97
The data protection framework governing algorithmic profiling ........... 100
3.1.1.  Data must be processed for a specific purpose ............................................... 102
3.1.2.  Individuals must be informed ...............................................................................104
3.1.3.  Keep the data safe: records, logs and storage rules ...................................... 107
3.1.4.  Unlawful processing must be detected and prevented ................................ 108
Large-scale databases for border management and security purposes ....112
3.2.1.  Minimising the fundamental rights risks of processing data in 

3.2. 

large-scale databases ..............................................................................................115

CONCLUSION ............................................................................................................................... 120
ANNEX.......................................................................................................................................... 121
REFERENCES ...............................................................................................................................123

3

Figures and tables

Figure 1:  Algorithmic profiling process in the context of law 

enforcement and border management .....................................................21

Figure 2: 

Infringement of privacy and data protection – the assessment 
process ................................................................................................................36

Figure 3:  Most recent police stops perceived as ethnic profiling among 
those stopped in the five years before the EU-MIDIS II survey, 
by EU Member State and target group (%) ..............................................43

Figure 4:  The cycle of the self-fulfilling prophecy ....................................................49

Figure 5:  Three elements of a respectful encounter ...............................................57

Figure 6:  The process and objectives of developing targeted training...............63

Figure 7: 

Indicators considered helpful or very helpful for effectively 
recognising persons attempting to enter the country in an 
irregular manner before officers speak to them (%) .............................69

Figure 8:  Combination of elements ..............................................................................73

Figure 9:  Elements of non-discriminatory profiling .................................................74

Figure 10:  Elements of internal monitoring ..................................................................83

Figure 11:  Online tool showing details of stop and search actions 

conducted 
in London ...........................................................................................................86

Figure 12:  Overview of complaints mechanisms in EU Member States ...............92

Figure 13:  Minimum requirements of impact assessments ..................................111

Table 1: 

Characteristics of specific intelligence-led policing and 
predictive policing............................................................................................18

Table 2:  Data protection requirements - differences between the 

Police Directive and the GDPR ......................................................................33

Table 3: 

Types, characteristics of guidance and stakeholder involvement .....61

Table 4: 

Identifying the correct legal framework depending on the 
purpose of processing ................................................................................. 103

Table 5:  Obligation to provide individuals with profiling information: 

type of data, means of communication and exceptions .................... 105

Table 6: 

Selected EU instruments involving the processing of large 
amounts of data for border management and law enforcement ....113

Table 7: 

Existing and planned EU large-scale IT systems .................................. 121

Abbreviations and acronyms 
CCC 

Common Core Curriculum

CJEU 

DPIA 

ECHR 

ECtHR 

EDPS 

EES 

ENISA 

ETIAS 

EU 

Court of Justice of the European Union

Data Protection Impact Assessment

European Convention on Human Rights

European Court of Human Rights

European Data Protection Supervisor

Entry/Exit System

European Union Agency for Network and Information Security

European Travel Information and Authorisation System

European Union

EU-MIDIS 

European Union Minorities and Discrimination Survey

FRA 

European Union Agency for Fundamental Rights

FRONTEX 

European Border and Coast Guard (also EBCGA)

GDPR 

IT 

General Data Protection Regulation

Information Technology

OHCHR 

Office of the United Nations High Commissioner for Human Rights

OSCE 

SIS II 

TCN 

UN 

Organization for Security and Co-operation in Europe

Schengen Information System

Third Country National

United Nations

UNHRC 

United Nations Human Rights Committee

VIS 

WP29 

Visa Information System

Article 29 Data Protection Working Party

5

Introduction
Introduction

Technological developments have triggered an increased use of profiling in a wide 
range of contexts, including marketing, employment, health, finance, law enforce-
ment, border control and security. The use of profiling tools to support the work of law 
enforcement and border management officials has received greater attention from EU 
Member States in recent years. Profiling is commonly, and legitimately, used by law 
enforcement officers and border guards to prevent, investigate and prosecute criminal 
offences, as well as to prevent and detect irregular immigration. However, unlawful pro-
filing can undermine trust in the authorities, in particular in the police, and stigmatise 
certain communities. This in turn can escalate tensions between communities and law 
enforcement authorities for what is perceived as the discriminatory use of profiling.

This guide explains what profiling is, the legal frameworks that regulate it, and why 
conducting profiling lawfully is not only necessary to comply with fundamental 
rights, but also crucial for effective policing and border management. The guide also 
provides practical guidance on how to avoid unlawful profiling in police and border 
management operations. The principles and practices in the guide are supported by 
examples, case studies and case law from across the EU and beyond.

Why do we need this guide?

Profiling raises a number of fundamental rights concerns.1 Profiling practices risk 
violating well-established legal principles including equality and non-discrimination, 
and the rights to respect for private life and data protection. In addition, questions 

1 

See FRA (2018e), pp. 85-87; FRA (2017c), pp. 88-89; and FRA (2016), pp. 83-85.

7

have been raised about its effectiveness in combating illegal activity, as well as pos-
sible negative consequences for relations between the authorities (including the 
police and border management) and the communities they serve.

In response to these concerns, the European Union Agency for Fundamental Rights 
(FRA) published the guide Towards more effective policing, Understanding and pre-
venting discriminatory ethnic profiling in 2010. Focusing on the use of profiling by 
the police, it concentrated in particular on the exercise of stop and search powers. 
The guide aimed to give mid-level officers tools for avoiding discriminatory profiling 
based on ethnicity.

Since then, technological developments have changed the nature of profiling con-
siderably. Much profiling is now based on the results of computer analysis of large 
data sets. On the legal side, the reformed – stricter – data protection rules applying 
across the EU from May 2018 set new standards for the collection, analysis and use 
of personal data.

This updated guide takes account of these significant changes to build on and 
expand the 2010 guide to reflect the new legal and practical realities. It takes a more 
comprehensive approach to unlawful profiling by incorporating:

 

 

 

profiling in the context of border management;

discriminatory profiling on all grounds, including nationality, age and gender, 
in addition to ethnic origin; and

algorithmic, or computer-based, profiling.

This 2018 version also contains new examples and case studies to reflect develop-
ments and innovations concerning profiling.

Who should use this guide?

This guide is primarily designed for those responsible for training law enforcement 
and border management officials. It may also directly support officers in mid-level 
positions to implement profiling techniques lawfully. It aims to increase understand-
ing of the theory and practice of profiling, and to illustrate in concrete terms how 
profiling can be conducted in compliance with fundamental rights.

The guide covers profiling by frontline police officers – for example, during stop and 
search actions – and checks by border guards at border crossing points, namely 

8

Preventing unlawful profiling today and in the future: a guideIntroduction

when a decision is taken to refer a person for a more thorough ‘second line’ check. 
In border management, it is a training aid for those teaching the common core cur-
riculum of border-guard training under Article 36 (5) of the European Border and 
Coast Guard Regulation (Regulation (EU) No 2016/1624).

The guide also addresses profiling based on the analysis of large-scale data sets, 
including those regulated by EU law. Profiling in other situations, such as profiling 
carried out in the private sector for commercial purposes, is beyond the scope of this 
current guide. FRA is conducting further research on this topic.2

How to use this guide

This guide provides an overview of the main principles and practice of profiling in 
the context of law enforcement and border management. It can be read as a whole, 
or used as a reference to support training activities.

The guide contains three chapters. Chapter 1 explains the concept of profiling, clari-
fies when profiling becomes unlawful and describes its possible negative impact 
on individuals, communities, and on the exercise of police and border management 
powers. Chapter 2 details the principles and practices that should guide law enforce-
ment officers and border guards implementing lawful profiling activities. Finally, 
Chapter 3 focuses on algorithmic profiling. Given that practice in this area is not so 
developed, this section contains fewer concrete examples. Instead it presents the 
principal risks to fundamental rights associated with computer-based profiling, and 
sets out the main legal requirements established by the General Data Protection 
Regulation (GDPR) and the Police Directive.

A number of visual elements highlight the different aspects of the guide. Key points 
summarise the main messages and are highlighted in yellow boxes. Light blue boxes 
highlight core aspects of the legal framework and green boxes present practical 
examples. Other boxes highlight important points to focus on, case studies, and 
caw law examples. Despite efforts to diversify the case studies, a disproportionate 
number of examples come from the United Kingdom (UK). This is because the UK 
has been addressing unlawful profiling since the 1980s, while other Member States 
have recognised unlawful profiling practices more recently. This means that the UK 
has developed more extensive and long-standing policies and practices in the field 
from which to draw examples.

2 

See FRA’s project on Artificial Intelligence, Big Data and Fundamental Rights. 

9

How was the guide developed?

FRA organised a meeting with experts from various fields to discuss an early draft of 
the guide and to assist it in producing the final product.

In this respect, FRA would like to express its thanks to experts from the Office of the 
United Nations High Commissioner for Human Rights (OHCHR), the European Bor-
der and Coast Guard Agency (FRONTEX), the Office of Democratic Institutions and 
Human Rights (ODIHR) at the Organization for Security and Cooperation in Europe 
(OSCE), Amnesty International, the European Network Against Racism (ENAR), the 
International Centre for Migration Policy Development (ICMPD), the FIZ Karlsruhe, 
Leibniz Institut für Informationsinfrastruktur GmbH, European Digital Rights, Open 
Society Initiative for Europe, and representatives of the French Ombudsman, from 
the Dutch, Danish and Austrian police forces, and from the Polish Border Guards for 
their valuable feedback during the drafting of the guide.

Summary of the main points

1.  Protected characteristics can never be the sole basis 

for profiling

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 

Profiling involves categorising individuals according to their characteristics.

To collect and process personal data, law enforcement and border management 
authorities must ensure that data collection and processing have a legal basis, 
have a valid, legitimate aim, and are necessary and proportionate.

Protected characteristics such as race, ethnic origin, gender or religion can be 
among the factors that law enforcement authorities and border guards take into 
account for exercising their powers, but they cannot be the sole or main reason 
to single out an individual. (For more information on ‘protected characteristics’, 
see Section 1.2.1.).

Profiling that is based solely or mainly on one or more protected characteristics 
amounts to direct discrimination, and therefore violates the individual’s rights 
and freedoms and is unlawful.

2.   Any encounter with individuals should be respectful,  

professional and informative

 

A good quality encounter in itself does not eliminate bias-based profiling, but is 
more likely to make the encounter more successful and reduce the possible negative 
impact of being stopped by a police officer or border guard. In border management, 
professional and respectful conduct is specifically referred to as a legal obligation.

10

Preventing unlawful profiling today and in the future: a guideIntroduction

 

 

 

Professional and respectful conduct generally increases a person’s satisfaction 
with the encounter.

Explaining the reasons for stopping a person helps to boost public confidence in 
police and border management operations, and reduces the perception of bias-
based profiling.

Respect and politeness, however, never justify unlawful border checks or stop 
and search actions.

3.  Profiling should be based on objective and reasonable 

grounds

 

 

 

To be lawful, stops and referrals to second-line border checks must be based on 
reasonable and objective grounds of suspicion.

Personal characteristics can be used as legitimate factors for profiling. However, 
to avoid being discriminatory, there must also be reasonable grounds for suspi-
cion based on information other than protected characteristics.

Law enforcement and border management actions based on specific and up-to-
date intelligence are more likely to be objective.

  What is crucial is that a decision to stop an individual or refer them to a second-
line border check should not be based solely on an officer’s feeling about them, 
as this risks being based on bias, stereotypes and/or prejudice.

4.  Unlawful profiling has a negative impact on policing and 

border management

 

 

 

Unlawful profiling undermines trust in the police and border guards. It can cause 
a deterioration in the relationship between the police/border guards and mem-
bers of minority and other communities who may feel singled out. This sense of 
injustice may lead to some individuals and groups losing trust in the police and 
other authorities, which may result in reduced reporting of crimes to the police 
and cooperation with the authorities. The authorities in turn may view certain 
groups with suspicion, which can trigger more unlawful profiling practices.

Unlawful profiling undermines the effectiveness of profiling, as the rate at 
which individuals are stopped, either by police or at the border, does not neces-
sarily correspond to offending rates among different groups.

There is the risk of a self-fulfilling prophecy when a minority group is dispropor-
tionately targeted by police or border management officers, resulting in higher 
numbers of arrests or checks at the border.

11

5.  Unlawful profiling has legal and financial consequences, and 

officers are accountable for it

 

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Law enforcement and border management officials are accountable for keeping 
profiling within the law.

Collecting reliable, accurate and timely data is crucial for ensuring accountability.

Effective complaint mechanisms can both deter abuses of power and help to 
secure and restore public trust in the operations of the police and border manage-
ment authorities.

Feedback meetings with members of the public (to listen to their opinions, dis-
cuss profiling, and gather feedback on operations, provide opportunities to learn 
important lessons and improve profiling actions. 

6.  Algorithmic profiling must respect specific data protection 

safeguards

 

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 

 

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In developing and using algorithmic profiling, bias may be introduced at each step 
of the process. To avoid this and subsequent potential violations of fundamental 
rights, both the IT experts and officers interpreting the data should have a clear 
understanding of fundamental rights.

Using reliable data is crucial. Entering data that reflect existing biases or come 
from unreliable sources into an algorithm will produce biased and unreliable 
outcomes.

Algorithmic profiling must be legitimate, necessary and proportionate.

Processing of data must have a specific purpose.

Individuals have a right to be informed, by receiving information on the personal 
data that are collected and stored, on the processing and its purpose, and on their 
rights.

Data should be safely collected, processed and stored. Authorities are expected 
to keep records of the processing activities (including what is done to the data) 
and of the logs relating to them (including information on the person/s accessing 
the data).

Unlawful data processing must be prevented and detected: 1) through prior 
impact assessments, and 2) through the use of privacy tools embedded ‘by 
design’ in the algorithm.

12

Preventing unlawful profiling today and in the future: a guideIntroduction

Relevant websites

European Union
Court of Justice of the European Union (CJEU): http://www.curia.eu
EU legislation: http://eur-lex.europa.eu/
European Union Agency for Fundamental Rights (FRA): http://www.fra.europa.eu
European Parliament: http://www.europarl.europa.eu

Council of Europe
Committee of Ministers of the Council of Europe: http://www.coe.int/cm
European Court of Human Rights (ECtHR): http://www.echr.coe.int

United Nations
Office of the United Nations High Commissioner for Human Rights (OHCHR): http://
www.ohchr.org

Fight against discrimination
European Commission against Racism and Intolerance (ECRI): http://www.coe.int/
ecri
European Network of Equality Bodies (Equinet): http://www.equineteurope.org/
National Equality bodies: http://www.equineteurope.org/-Equinet-Members-

Data Protection
European Data Protection Supervisor (EDPS): https://edps.europa.eu/
European Data Protection Board (EDPB): https://edpb.europa.eu
National Data Protection Authorities: https://edpb.europa.eu/about-edpb/board/
members_en

Law enforcement
Independent Police Complaints Authorities’ Network (IPCAN): https://ipcan.org/
European Union Agency for Law Enforcement Training (CEPOL): https://www.cepol.
europa.eu/
European Union Agency for Law Enforcement Cooperation (EUROPOL): https://
www.europol.europa.eu/

Border management
European Border and Coast Guard Agency (FRONTEX): https://frontex.europa.eu/
European Asylum Support Office (EASO): https://www.easo.europa.eu/

Large-scale databases
European Agency for the operational management of large-scale IT systems in the 
area of freedom, security and justice (eu-LISA): https://www.eulisa.europa.eu/

13

1 

Setting the scene:  
What is profiling?

This chapter describes what is meant by profiling and explains the main fundamen-
tal rights it can affect. It introduces profiling in the context of law enforcement and 
border management activities by looking at three essential elements:

•  The concept of profiling and its use by law enforcement and border management 
authorities. This section also introduces some of the different types of profiling.

•  The most important fundamental rights principles that must be respected if pro-
filing is to be conducted lawfully, namely non-discrimination and the rights to 
respect for private life and data protection.

•  The potential negative impacts of profiling, including the possible consequences 
on individuals and on relationships with communities, and trust in the police and 
border management authorities.

1.1.  Defining profiling

Profiling involves categorising individuals according to personal characteristics. 
These characteristics can be ‘unchangeable’ (such as age or height) or ‘changeable’ 
(such as clothing, habits, preferences and other elements of behaviour). Profiling 
includes data mining whereby individuals are categorised “on the basis of some 
of their observable characteristics in order to infer, with a certain margin of error, 
others that are not observable”.3

3 

Dinant J.-M., Lazaro C., Poullet Y., Lefever N. and Rouvroy A. (2008), p. 3.

15

Key points

 

 

 

 

 

Profiling  involves  categorising  individuals  according  to  their  inferred 
characteristics.

There are two main purposes of profiling in the context of law enforcement and 
border management: to identify known individuals based on intelligence con-
cerning a specific individual, and as a predictive method to identify ‘unknown’ 
individuals who may be of interest to law enforcement and border management 
authorities. Both may include conscious or unconscious biases that may discrimi-
nate against individuals.

Profiling activities of border guards and law enforcement officers may be influ-
enced by biases originating either from their individual or institutional experi-
ences. These biases may feed into and alter the profiling assessment, affecting 
both the lawfulness and effectiveness of policing.

Stereotypes may reflect some statistical truth. However, even in these cases, 
they remain problematic if they result in an individual being treated as member 
of a group and not based on his/her individual situation.

In developing and using algorithmic profiling, bias may be introduced at each 
step of the process. To avoid these and subsequent potential violations of funda-
mental rights, both the IT experts designing the algorithms and officers collect-
ing and interpreting the data should have a clear understanding of fundamental 
rights and how to apply them in this context.

Profiling practices are used to:

•  Generate knowledge, by analysing existing data to make assumptions about an 
individual. It uses past experiences and statistical analysis to establish correla-
tions between certain characteristics and particular outcomes or behaviour.

•  Support decision-making processes, by using these correlations to make deci-

sions about what actions to take.

This makes profiling a powerful tool for law enforcement officers and border guards. 
However, it carries some significant risks:

•  Profiling establishes general correlations that may not be true for each individ-

ual. Any given individual may be the ‘exception to the rule’.

•  Profiles may generate incorrect correlations, both for specific individuals and for 

groups.

16

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

•  Profiles can create harmful stereotypes and lead to discrimination.

•  Some stereotypes may reflect a statistical truth. However, even in these cases, 
stereotypes remain problematic if they result in a person being treated as 
a member of a group rather than as an individual.

Examples

Potentially inaccurate profiling

The assumption that ‘women live longer than men’ is underpinned by factual 
research; however, any particular man may live longer than any particular 
woman. Therefore, any decision-making towards woman based on this 
assumption carries the risk of being inaccurate in any single case and would 
only remain true only on average.

Individuals may allow their family or friends to use their car, making unreliable 
any profile of risky driving behaviour based on ownership of the car.

1.1.1.  Profiling in the context of law enforcement and 

border management

Profiling is commonly, and legitimately, used by law enforcement officers and border 
guards to prevent, investigate and prosecute criminal offences, as well as to prevent 
and detect irregular immigration.

Profiling means “any form of automated processing of personal data consisting of 
the use of personal data to evaluate certain personal aspects relating to a natural 
person, in particular to analyse or predict aspects concerning that natural person’s 
performance at work, economic situation, health, personal preferences, interests, 
reliability, behaviour, location or movements”.4 The results of this data processing 
are used to guide border management and law enforcement actions, such as stop 

4 

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the 
protection of natural persons with regard to the processing of personal data by competent authorities 
for the purposes of the prevention, investigation, detection or prosecution of criminal offences or 
the execution of criminal penalties, and on the free movement of such data, and repealing Council 
Framework Decision 2008/977/JHA, OJ L 119 (Police Directive), Art. 3(4).

17

and search, arrests, refusal of access to certain areas, or referral to more thorough 
‘second line checks’ at the border. There are two main uses of profiling:

•  To identify individuals based on specific intelligence. This uses a profile listing the 
characteristics of specific suspects, based on evidence gathered about a particu-
lar event.

•  As a predictive method to identify ‘unknown’ individuals who may be of interest 
to law enforcement and border management authorities. This is based on data 
analysis and informed assumptions derived from experience. Ideally, predictive 
methods focus on behaviour. In practice, however, the focus is often not (or not 
only) on behaviour, but on visible physical characteristics, such as age, gender or 
ethnicity.

Table 1 presents a comparison of the key characteristics of these two types of profil-
ing in the context of policing.

Table 1: 

Characteristics of specific intelligence-led policing and predictive 
policing

Specific intelligence-led 
policing

Predictive policing

Context

A crime has been committed, or an 
alert has been issued on a specific 
person

No crime has been committed, 
or no alert has been issued on 
a specific person

Approach

Reactive

Proactive

Objective

To apprehend suspect(s)

To predict where and when crimes 
might happen or who might 
attempt to enter the country in an 
irregular manner

Data used

Specific intelligence related to the 
case (the ‘individual profile’)

Generic intelligence related to 
several cases

Type of 
process

Data-driven and human processes are 
combined

Mainly data-driven (‘risk analysis’)

Source:  FRA, 2018

Both types of profiling can be unlawful if they are not done in accordance with spe-
cific safeguards, including having an objective and reasonable justification for the 
profiling. Chapter 2 and Chapter 3 provide practical information on how to ensure 
that profiling is both lawful and in accordance with human rights.

18

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

1.1.2.  Defining algorithmic profiling

Rapid technological developments mean that profiling is increasingly based on the 
use of data stored in databases and information technology systems (IT-systems). 
Algorithmic profiling uses different techniques to profile people based on correla-
tions and patterns in data. Algorithmic profiling allows law enforcement and border 
management officers to target individuals or specific groups that constitute a certain 
risk on the basis of data analysis.

Algorithmic profiling raises important fundamental rights issues, such as potential 
discrimination and violations of the rights to respect for private life and data protec-
tion. This section of the guide focuses on how law enforcement and border manage-
ment officials can use and treat data in line with fundamental rights principles in 
their daily work.

Processing personal data: what does the law say?

The legal standards for processing personal data to construct profiles 
are set out in the EU’s data protection legal framework. According to 
both Article 4 (4) of the General Data Protection Regulation (GDPR) and 
Article 3 (4) of the Police Directive, “‘profiling’ means any form of automated 
processing of personal data consisting of the use of personal data to evaluate 
certain personal aspects relating to a natural person, in particular to analyse 
or predict aspects concerning that natural person’s performance at work, 
economic situation, health, personal preferences, interests, reliability, 
behaviour, location or movements”.

Article 22 (1) of the GDPR states that profiling may only be accepted provided 
the decision is not solely based on automatic processing and does not 
produce effects on individuals that would significantly affect them.

Profiling falling under the scope of the Police Directive (see Section 3.1 on 
algorithmic profiling and data protection) should abide by Article 11 (3) of 
the Police Directive. It provides that “[p]rofiling that results in discrimination 
against natural persons on the basis of special categories of personal data 
referred to in Article 10* shall be prohibited, in accordance with Union law”.

19

*  ‘Special categories of personal data’ are “personal data revealing racial or 
ethnic origin, political opinions, religious or philosophical beliefs, or trade 
union membership, and the processing of genetic data, biometric data 
for the purpose of uniquely identifying a natural person, data concerning 
health or data concerning a natural person’s sex life or sexual orientation”. 
See Police Directive, Article 10 (1).

The method used to generate profiles for algorithmic profiling is similar to a tech-
nique known as ‘behavioural analysis’, where connections are made between cer-
tain characteristics and patterns of behaviour. Figure 1 shows how algorithms can be 
used to make predictions.

Focus on how algorithms are used to support decision-making 

With the increased availability and use of data, decision-making is increasingly 
facilitated or replaced by predictive modelling methods, often referred to as 
the use of algorithms. An algorithm is a sequence of commands for a computer 
to transform an input into an output. Many algorithms are based on statistical 
methods, and use techniques which calculate relationships among different 
variables. For example, data on how much alcohol a group of people drinks 
and data on the life expectancy of the same group can be used together to 
calculate the average influence of drinking alcohol on life expectancy.

The output of algorithms is always a probability, which means that there is a degree 
of uncertainty about the relationships or classifications made. For example, email 
providers use algorithms to identify which messages are spam and send those to 
the junk mail folder. The algorithms work well, but are not perfect. Sometimes spam 
is not detected and ends up in the inbox; this is a false negative (i.e. it is falsely not 
identified as spam). Less often, a legitimate email might be picked out by the spam 
filter and sent to the junk mail folder; this is a false positive. 

Having a basic understanding of how algorithms support decision-making allows 
practitioners to be able to identify and ask the right questions about potential 
problems with the use of algorithms, including their potential for discrimination 
and violations of the rights to respect for private life and data protection.

For more information, see FRA (2018b). 

20

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

Figure 1: Algorithmic proﬁling process in the context of law enforcement
and border management

Figure 1:  Algorithmic profiling process in the context of law enforcement and 

border management

Preparatory
phase

Design and development of the algorithm

Specifying the goal of the analysis:
prediction, description or explanation

Step 1
Data collection
or selection of
training data for
predictive purposes

Step 2
Data analysis
/data mining

Step 3
Data interpretation
or application
of the predictive
model

Data are gathered by law enforcement agencies,
border authorities and other public bodies. In some 
cases, the data may be purchased from private actors.

Data are stored in warehouses, 
and prepared for analysis

The data are analysed to identify 
patterns and correlations.

Statistical models are trained to set 
up a predictions

The result of the analysis is used to identify
behavioural patterns for given groups of individuals

Decisions on law enforcement and broder 
management actions can be made on the 
basis of these proﬁles/predictions.

Source:  FRA, 2018 (adapted from/based on Perry, W.L., et al. (2013), pp. 11–15, and Zarsky, 

T.Z. (2002–2003), pp. 6–18)

The creation of algorithms for prediction is a complex process that involves many 
decisions made by several people involved in the process. As such, it does not only 
refer to rules followed by a computer, but also to the process of collecting, preparing 
and analysing data. This is a human process that includes several stages, involving 
decisions by developers and managers. The statistical method is only part of the 
process for developing the final rules used for prediction, classification or decisions.5 
In any case, the way data are collected and used may be discriminatory.

5 

FRA (2018b), p. 4.

21

Example

To be effective and accurate, facial recognition software needs to be fed with 
massive amounts of pictures and data. The more data it receives, the more 
accurate its findings will be. Yet to date, the images fed into algorithms to 
train them have largely been of white men, with comparatively low numbers 
of women and/or individuals of other ethnic backgrounds. As a result, the 
outputs produced by the software are less precise, and carry a greater 
likelihood of inaccuracy for individuals belonging to these groups. When used 
by law enforcement officers or border guards to profile people and decide 
on, for instance, their arrest, this can result in mistakes with a potentially 
serious impact on the rights and freedoms of the individual.

For more information, see Center on Privacy and Technology at Georgetown 
Law (2016); and Buolamwini J., Gebru T. (2018).

Bias may be introduced at each step of the process of algorithmic profiling. To avoid 
discriminatory bias and violations of the rights to data protection and privacy, both 
the people designing the algorithms and the law enforcement officers and border 
management officers collecting and interpreting the data should have a clear under-
standing of fundamental rights and their application in this context.

Using reliable data is crucial. In algorithmic profiling, the quality of the data used 
must be assessed to ensure it is reliable: the lower its variability, the higher its reli-
ability. Using data which reflect existing biases or come from unreliable sources to 
build an algorithm will produce biased and unreliable outcomes. Errors might also 
occur during the predictions inferred from the data:

•  False positives refer to cases where individuals are singled out and subjected to 

further scrutiny on the erroneous prediction that they constitute a risk.

•  False negatives refer to individuals who pose a real risk in the context of law 
enforcement and border management operations but have not been identified 
as such by the system.

22

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

1.2.  When is profiling unlawful?

Key points

 

 

Personal characteristics can be used as legitimate factors for profiling. However, to 
avoid profiling being discriminatory and therefore unlawful, there must also be rea-
sonable grounds for suspicion based on information other than protected grounds.

 

 

Protected grounds include sex, race, colour, ethnic or social origin, genetic 
features, language, religion or belief, political or any other opinion, mem-
bership of a national minority, property, birth, disability, age, and sexual 
orientation.

Protected grounds may be revealed, inferred or predicted from other per-
sonal data.

To collect and process personal data, law enforcement and border management 
authorities must ensure that data collection and processing have a legal basis, 
have a valid, legitimate aim, and are necessary and proportionate.

 

Personal data is any information that may be used to identify – directly or 
indirectly – a person, such as: a name, an identification number, location data, 
or any physical, physiological, genetic, mental, economic, cultural or social 
identity specific to a person.

When used lawfully, profiling is a legitimate investigation technique. To be lawful, 
it must be based on objective and reasonable justifications and comply with funda-
mental rights, such as the right to non-discrimination and to protection of personal 
data. Profiling will be deemed to have no objective and reasonable justification “if 
it does not pursue a legitimate aim or if there is not a reasonable relationship of 
proportionality between the means employed and the aim sought to be realised”.6

Profiling can touch on many different fundamental rights. This section focuses on 
the fundamental rights that are mainly affected by unlawful profiling: the right to 
non-discrimination, and the rights to privacy and data protection. Profiling will be 
deemed unlawful if:

• 

• 

it includes acts of unjustified differential treatment of individuals on the basis of 
protected grounds (see Section 1.2.1), or

it unnecessarily interferes with individuals’ private lives, and/or is not in accord-
ance with rules regarding the processing of personal data (see Section 1.2.2).

6 

European Commission against Racism and Intolerance (ECRI) (2007), para. 28.

23

1.2.1.  The prohibition of discrimination

Prohibition of discrimination: what does the law say?

“Any discrimination based on any ground such as sex, race, colour, ethnic 
or social origin, genetic features, language, religion or belief, political or any 
other opinion, membership of a national minority, property, birth, disability, 
age or sexual orientation shall be prohibited.”*

Article 21 of the EU Charter of Fundamental Rights

“The enjoyment of any right set forth by law shall be secured without 
discrimination on any ground such as sex, race, colour, language, religion, 
political or other opinion, national or social origin, association with a national 
minority, property, birth or other status. No one shall be discriminated 
against by any public authority on any ground such as those mentioned in 
paragraph 1.”

Article 1 of the Protocol No 12 to the European 
Convention on Human Rights

*  It should be noted that, in practice, many Member States have extended protection 

against discrimination beyond the grounds listed in the Charter and in the European 

Convention for Human Rights (ECHR).

Discrimination is “where one person is treated less favourably than another is, has 
been or would be, treated in a comparable situation” on the basis of a perceived or 
real personal characteristic.7 These characteristics are called ‘protected grounds’ or 
‘protected characteristics’ in non-discrimination law. More information on European 
law and jurisprudence in the area of non-discrimination is available in the 2018 edi-
tion of the Handbook on European non-discrimination, jointly published by FRA and 
the Council of Europe.8

7 

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between 
persons irrespective of racial or ethnic origin, OJ L 180, Article 2; and Council Directive 2000/78/EC 
of 27 November 2000 establishing a general framework for equal treatment in employment and 
occupation, OJ L 303, Art. 2.

8 

FRA and Council of Europe (2018).

24

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

There are several types of discrimination:

Direct discrimination is when a person is treated less favourably, solely or mainly on 
the basis of a protected ground, such as race, gender, age, disability or ethnic origin.9

Example

In response to a terrorist threat, the police are given the power to stop 
and search anybody they think might be involved in terrorism. The threat 
is believed to come from a terrorist organisation active in a certain region 
of the world, but there is no further specific intelligence. If a police officer 
stops a man solely or mainly because his appearance indicates that he may 
originate from the same region of the world, this would constitute direct 
discrimination and be unlawful.

Indirect discrimination (also referred to as ‘disparate impact discrimination’ in the 
context of law enforcement and border management) occurs where an apparently 
neutral provision, criterion or practice would put persons having particular protected 
characteristics at a particular disadvantage compared to other persons, unless that 
provision, criterion or practice is objectively justified by a legitimate aim and the 
means of achieving that aim are necessary and proportionate.10 Indirect discrimi-
nation generally requires statistics to assess whether an individual was, in practice, 
treated less favourably than another on the basis of their membership of a group 
with particular protected characteristics.

Example

To perform routine controls, law enforcement authorities decide to stop one 
out of every 10 cars in town X between the hours of 21:00 and 01:00; 60% 
of the population of town X driving during these hours is of Afro-Caribbean 
descent, whereas the Afro-Caribbean population of the town and surrounding 
area does not exceed 30%. As this group is likely to be more negatively 
affected than others, it would amount to indirect discrimination.

9 

Ibid., p. 43.

10  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal 

treatment in employment and occupation, OJ L 303 (Employment Equality Directive), Art. 2; see also FRA 
and Council of Europe (2018), p. 53.

25

Addressing discrimination on the basis of a single ground fails to reflect adequately 
the various manifestations of unequal treatment. Multiple discrimination describes 
discrimination that takes place on the basis of several grounds operating separately. 
For instance, an individual may face discrimination not only because of their ethnic 
origin, but also their age and gender.11 Intersectional discrimination describes a situ-
ation where several grounds operate and interact with each other at the same time 
in such a way that they are inseparable and produce specific types of discrimination 
(see Example box).

Example

A police officer stops and searches a young man of African descent without 
reasonable suspicion that he has committed a crime. He is discriminated 
against not just because of his age – not all young people are stopped – or 
his ethnic origin – not all people of African descent are stopped, but precisely 
because he is both young and of African descent.

Discrimination may also arise from the automated processing of personal data and 
the use of algorithmic profiling. Discrimination can occur during the design and 
implementation of algorithms, through biases that are incorporated – consciously or 
not – in the algorithm, as well as when decisions are made on the basis of the infor-
mation obtained.

Article 9 (1) of the GDPR specifically states that the processing of special categories 
of personal data that reveal personal characteristics, such as racial or ethnic origin, 
political opinions, religious or philosophical beliefs shall be prohibited (see Figure 9 
in Section 2.2.4 for the full list of protected grounds). This prohibition may be lifted 
in specific cases, such as the protection of public interest, providing that the exemp-
tion has a legal basis, is proportionate and necessary, and provides for adequate 
safeguards.12

Similarly, in the context of the prevention, investigation, detection and prosecution 
of criminal offences, Article 11 (3) of the Police Directive on automated individual 
decision-making prohibits “profiling that results in discrimination against natural per-
sons on the basis of special categories of personal data”, including data revealing 

11 

FRA and Council of Europe (2018), p. 59.

12  General Data Protection Regulation (GDPR), Art. 9(2)g.

26

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

racial or ethnic origin and religious beliefs, and genetic and biometric data.13 Again, 
exceptions to this prohibition are permitted in certain cases, but must be necessary, 
have appropriate safeguards, and should either have a legal basis, or have the aim to 
protect the vital interests of an individual.14

Prohibition of discriminatory profiling: what does the law say?

“Profiling that results in discrimination against natural persons on the basis 
of personal data which are by their nature particularly sensitive in relation to 
fundamental rights and freedoms should be prohibited under the conditions 
laid down in Articles 21 and 52 of the Charter [of fundamental rights].”

Recital 38 of the Police Directive

“Profiling that results in discrimination against natural persons on the basis 
of special categories of personal data referred to in Article 10* shall be 
prohibited, in accordance with Union law.”

Article 11(3) of the Police Directive

*  Article 10 of the Police Directive: “data revealing racial or ethnic origin, political 

opinions, religious or philosophical beliefs, or trade union membership, and the 

processing of genetic data, biometric data for the purpose of uniquely identifying 

a natural person, data concerning health or data concerning a natural person’s sex 

life or sexual orientation”.

“While carrying out border checks, border guards shall not discriminate 
against persons on grounds of sex, racial or ethnic origin, religion or belief, 
disability, age or sexual orientation.”

Article 7 of the Schengen Borders Code

The prohibition of discrimination does not mean that personal characteristics cannot 
be used as legitimate factors for profiling in the context of criminal investigations 
or border checks (see Section 2.3). However, there must be reasonable grounds for 
suspicion based on information other than the protected grounds. For example, an 

13 

For more information see, Article 29 Data Protection Working Party (2017b).

14  Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the 

protection of natural persons with regard to the processing of personal data by competent authorities 
for the purposes of the prevention, investigation, detection or prosecution of criminal offences or 
the execution of criminal penalties, and on the free movement of such data, and repealing Council 
Framework Decision 2008/977/JHA, OJ L 119 (Police Directive), Art. 10.

27

individual may match a specific description of a suspect, or their appearance may 
not correspond to the information contained in their travel document.15

Focus on discrimination on the grounds of nationality 

Article 21 of the EU Charter of Fundamental Rights limits the prohibition 
of discrimination on the grounds of nationality to EU citizens. The Racial 
Equality Directive does not include nationality among the protected grounds.

However, Member States have broadened the scope of the prohibition 
of discrimination to cover nationality in various ways. This includes 
acknowledging that nationality is sometimes used as a proxy for race, 
ethnic origin, or religion. In certain such cases, “differences of treatment 
on grounds of nationality […] [will be] found in violation of legislation 
prohibiting discrimination on these grounds” (see European network of 
legal experts in gender equality and non-discrimination, 2016, p. 99). In 
practice, discrimination on the grounds of nationality and discrimination on 
the grounds of ethnicity are often difficult to distinguish.

The fact that nationality is not explicitly mentioned as a potential ground 
of discrimination in Article 21 of the Charter primarily reflects the different 
status of EU citizens (and other persons enjoying the right of free movement 
under EU law) and third-country nationals under EU law. This is of particular 
significance in border procedures, where nationality is the decisive factor in 
determining whether an individual will be subject to a thorough check, or 
must hold a visa to enter – or transit through – the Schengen area.

At the same time, a systematic referral to second line checks of all persons 
of a specific nationality risks becoming discriminatory. Nationality can be 
a legitimate part of risk profiles to detect irregular migration or presumed 
victims of trafficking in human beings, but must not be the sole or primary 
trigger of a second line check. Furthermore, as in other contexts, differential 
treatment based on nationality becomes discriminatory and therefore 
unlawful when it is used as a proxy for discriminating on protected grounds 
that are closely linked to nationality, such as race, ethnicity or religion.

15  United Kingdom, House of Lords (2006), Lord Scott, Opinions of the Lords of appeal for judgment in 

R (on the application of Gillan et al.) v. Commissioner of Police for the Metropolis et al., [2006] UKHL 12, 
8 March 2006, para. 67.

28

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

In its 2014 Recommended Principles and Guidelines on Human Rights at 
International Borders, the Office of the UN High Commissioner for Human 
Rights includes nationality among the protected grounds which should not 
be used for the profiling of migrants (Principle 8).

Case law 

In Rosalind Williams Lecraft v. Spain, a woman was stopped by a police 
officer on the platform of a train station in Spain and asked to show her 
identity papers. The woman asked the police officer why she was the only 
person stopped on the platform and was told: “It’s because you’re black.” 
In its ruling, the UN Human Rights Committee underlined that it is generally 
legitimate to carry out identity checks in the interest of public safety and 
to prevent crime and monitor irregular immigration. However, it found 
that “when the authorities carry out these checks, the physical or ethnic 
characteristics of the persons targeted should not be considered as indicative 
of their possibly illegal situation in the country. Nor should identity checks 
be carried out so that only people with certain physical characteristics or 
ethnic backgrounds are targeted. This would not only adversely affect the 
dignity of those affected, but also contribute to the spread of xenophobic 
attitudes among the general population; it would also be inconsistent with 
an effective policy to combat racial discrimination”.

In 2017, a similar complaint was filed with the ECtHR, involving the treatment 
of a Pakistani national during and after a police stop in Spain. The court will 
have to decide whether the applicant suffered discrimination on the grounds 
of ethnic origin during the identity check, and whether there was a violation 
of Article 8 (right to private and family life) as regards the Spanish authorities’ 
failure to take all reasonable steps to uncover any possible racist motives 
behind the incident. The judgment is pending at the time of writing.

For more information, see UNHRC, Rosalind Williams Lecraft v. Spain, Comm. 
No. 1493/2006 and ECtHR, Zeshan Muhammad v. Spain, No. 34085/17, lodged 
on 6 May 2017. See also FRA and Council of Europe (2018).

In B.S. v. Spain, a female sex worker of Nigerian origin, who was legally 
resident in Spain, alleged that the Spanish police mistreated her physically 
and verbally on the basis of her race, gender and profession. She claimed 

29

that, unlike other sex workers of European origin, she was subject to repeated 
police checks and a victim of racist and sexist insults. Two third-party 
interventions from the AIRE Centre and the European Social Research Unit 
of the University of Barcelona asked the ECtHR to recognise intersectional 
discrimination. The court found a violation of Article 3 (prohibition of inhuman 
and degrading treatment), but went further to examine separately whether 
there was also a failure to investigate a possible causal link between the 
alleged racist attitudes and the violent acts of the police. On this issue, the 
ECtHR found a violation of Article 14 (prohibition of discrimination), because 
the domestic courts had failed to take into account the applicant’s particular 
vulnerability as an African woman working as a prostitute. Although taking an 
intersectional approach, the judgment did not use the term ‘intersectionality’.

For more information, see ECtHR, B.S. v. Spain, No. 47159/08, 24 July 2012. 

Focus on the burden of proof 

In 2016, the French Court of Cassation ruled for the first time on the question 
of discriminatory identity checks. In its Decisions of 9 November 2016, the 
court ruled that the police conducted discriminatory identity checks on three 
out of 13 men of African or Arab origin. It found that the state was responsible 
in these cases, and ordered it to pay compensation to the three claimants. 
In eight other cases, the court ruled that the contested identity checks were 
legal, as they were based on objective and therefore non-discriminatory 
elements. The judges did not rule on the two other cases, sending them 
back to the lower courts for retrial.

The court also clarified the burden of proof in such cases. Identity checks are 
not recorded when they do not lead to judicial or administrative proceedings. 
The court explained that claimants should provide courts with evidence to 
indicate the existence of discrimination. The police must prove either the 
absence of differential treatment in the implementation of identity checks, 
or that the differential treatment was justified by objective elements.

Moreover, the court found that judges can take into account, as evidence, 
studies and statistical information attesting to the frequency of identity 
checks carried out, on discriminatory grounds, on the same population 
group as the claimant (i.e. visible minorities, as determined by physical 

30

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

characteristics resulting from real or supposed ethnic origin). However, this 
evidence alone is insufficient to suggest discrimination.

Therefore,  the  court  held  that  an  identity  check  based  on  physical 
characteristics associated with an actual or supposed ethnic origin, without 
any prior objective justification, is discriminatory and represents serious 
misconduct which, in these three cases, involved the responsibility of the state.

For more information, see France, Court of Cassation (Cour de Cassation), 
Décision 1245, 9 November 2016.

1.2.2.  The right to respect for private life and the 

protection of personal data

Under EU law, the right to respect for private life (Article 7 of the Charter) and the 
protection of personal data (Article 8 of the Charter) are distinct, albeit closely 
related rights. The right to private life (or right to privacy) is a broader right, which 
prohibits any interference in the private life of an individual. Private life is under-
stood not simply as what one wishes to keep confidential, but also as the means 
through which one expresses one’s personality, for instance by choosing whom 
to interact with or how to dress. The protection of personal data is limited to the 
assessment of the lawfulness in relation to the processing of personal data.16 When 
not referring specifically to EU law, the two are used interchangeably for the pur-
pose of this guide. These rights are not absolute and can be limited in certain circum-
stances (see Article 8 of the ECHR and Article 52 of the Charter).

Rights to privacy and protection of personal data: what does the law say?

“1. Everyone has the right to respect for his private and family life, his home 
and his correspondence.

2. There shall be no interference by a public authority with the exercise of 
this right except such as is in accordance with the law and is necessary in 
a democratic society in the interests of national security, public safety or the 
economic well-being of the country, for the prevention of disorder or crime, 

16 

FRA, EDPS and Council of Europe (2018).

31

for the protection of health or morals, or for the protection of the rights and 
freedoms of others.”

Article 8 of the European Convention on Human Rights

“Everyone has the right to respect for his or her private and family life, home 
and communications.”

Article 7 of the EU Charter of Fundamental Rights

“1. Everyone has the right to the protection of personal data concerning 
him or her.

2. Such data must be processed fairly for specified purposes and on the 
basis of the consent of the person concerned or some other legitimate basis 
laid down by law. Everyone has the right of access to data which has been 
collected concerning him or her, and the right to have it rectified. (…)”

Article 8 of the EU Charter of Fundamental Rights

“1. The data subject shall have the right not to be subject to a decision based 
solely on automated processing, including profiling, which produces legal 
effects concerning him or her or similarly significantly affects him or her.

2. Paragraph 1 shall not apply if the decision: 

a)  is necessary for entering into, or the performance of, a contract […];

b)  is authorised by […] law […] which lays down suitable measures to safeguard 

the data subject’s rights and freedoms and legitimate interests; or

c) is based on the data subject’s explicit consent.

Article 22(1) and (2) of the General Data Protection Regulation

“Member States shall provide for a decision based solely on automated 
processing, including profiling, which produces an adverse legal effect 
concerning the data subject or significantly affects him or her, to be 
prohibited unless authorised by Union or Member State law to which the 
controller is subject and which provides appropriate safeguards for the 
rights and freedoms of the data subject, at least the right to obtain human 
intervention on the part of the controller.”

Article 11(1) of the Police Directive

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Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

EU secondary law elaborates on the rights to privacy and the protection of personal 
data. Two pieces of legislation specify how personal data can be collected and pro-
cessed. Regulation 2016/679, the General Data Protection Regulation (GDPR), sets 
out general principles and safeguards concerning the processing of personal data. 
More specifically, Directive 2016/680, known as the Police Directive, sets the rules 
for the processing of personal data in the context of law enforcement operations 

Table 2:  Data protection requirements - differences between the Police Directive 

and the GDPR

Data protection 
principle

Lawfulness,
Fairness, 
Transparency

Purpose 
limitation

GDPR

Police Directive

Personal data must be 
processed fairly, lawfully, and in 
a transparent manner.

Personal data must be 
processed fairly and lawfully.

Personal data collected for one 
purpose should not be further 
processed for an incompatible 
purpose; further processing 
for scientific, historical or 
statistical purposes shall not 
be incompatible with initial 
purposes

Personal data collected for 
one purpose should not be 
subsequently processed for 
an incompatible purpose; 
Other purposes shall not be 
incompatible with the initial 
purpose if such processing 
is authorised by law and is 
necessary and proportionate.

Data 
minimisation

Personal data collected shall be 
adequate, relevant and limited to 
what is necessary in relation to 
the purposes for which they were 
collected;

Personal data collected shall 
be adequate, relevant and not 
excessive in relation to the 
purposes for which they were 
collected.

Storage 
limitation

Personal data should be 
kept in a form which permits 
identification of data subjects 
for the period necessary to fulfil 
the purpose for which those 
data were collected; personal 
data may be stored for longer 
periods for scientific, historical or 
statistical purposes.

Personal data should be 
kept in a form which permits 
identification of data subjects, 
for the period necessary to 
fulfil the purpose for which 
those data were collected.

Accuracy

The personal data collected should be accurate and up to date. 
Incorrect or inaccurate personal data should be erased or rectified.

Integrity and 
confidentiality

Personal data should be kept secure against unauthorised or 
unlawful processing and against accidental loss, destruction or 
damage.

Source:  FRA, 2018

33

for the purposes of prevention, investigation, detection or prosecution of criminal 
offences. The most important principles and some key differences between the two 
are illustrated in Table 2. The laws setting up the large EU databases used for border 
management, such as the Visa Information System (VIS), the Entry/Exit System (EES) 
or the European Travel Information Authorisation System (ETIAS), also each contain 
a dedicated data protection framework (see Section 3.2 on large-scale databases).

Examples

A border guard sends the list of passengers on a plane to unauthorised 
persons. Once shared, these personal data may be used for other and/or 
private purposes. This is a clear breach of data protection principles.

A police officer leaves her office with a list of personal data related to 
suspects on her computer screen. By undermining the principle of security 
of personal data, this constitutes a violation of data protection principles.

Case Law 

Court judgments give guidance on how these principles are applied in 
practice.

Purpose limitation

In  Heinz  Huber  v.  Bundesrepublik  Deutschland,  the  CJEU  assessed 
the legitimacy of the German Central Register for Foreign Nationals 
(Auslanderzentralregister, AZR) which contains certain personal data relating 
to foreign nationals – both EU and non-EU citizens – who reside in Germany for 
more than three months. The CJEU concluded that data collected for a specific 
purpose cannot be used for a different purpose. The court considered that 
the AZR is a legitimate instrument to apply residence rules, and that the 
difference in treatment between foreign nationals and German nationals, 
on whom less data is kept, is justified given the intended purpose. However, 
the CJEU found that data stored in the AZR cannot be used for fighting crime 
in general, as this is a different purpose from that for which the data were 
originally collected.

34

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

For more information, see CJEU, Case C-524/06, Heinz Huber v. Bundesrepublik 
Deutschland, 16 December 2008.

Storage limitation

In S. and Marper v. United Kingdom, the applicants asked for the deletion 
of their records (fingerprints, cellular samples, and DNA profiles) from the 
DNA database used for criminal identification in the United Kingdom. Their 
trials had ended in acquittal and they were concerned about possible current 
and future uses of their data. The police refused. The ECtHR concluded that 
holding indefinitely the DNA samples of individuals who are arrested but 
later acquitted or have the charges against them dropped, is a violation of the 
right to privacy. The court highlighted the risk of stigmatisation, as the data of 
people who had not been convicted of any offence were treated in the same 
way as that of convicted persons. The court also recognised that the potential 
harm caused by retention of these data is particularly significant in the case of 
children, given the importance of their development and integration in society.

For more information, see ECtHR, S. and Marper v. United Kingdom, 
Nos. 30562/04 and 30566/04, 4 December 2008.

To collect and process personal data for the purposes of profiling, law enforcement 
and border management authorities must meet four essential legal criteria. The col-
lection and processing of data must:

•  be defined and regulated by law (legal basis): any limitation of the rights to 
respect for private life and data protection must be stipulated by law and respect 
the essence of those rights. The law must meet the standards of clarity and 
quality, meaning that the public have access to it and it is sufficiently clear and 
precise for the public to understand its application and consequences;

•  have a valid, lawful and appropriate purpose (legitimate aim): legitimate aims are set 
out in law and cannot be extended further. They may relate to national security, health, 
public order, or crime prevention;

•  be indispensable to achieving this purpose (necessity): the processing of per-
sonal data should be limited to what is necessary for the purpose for which the 
data were collected;

35

•  not be excessive (proportionality): authorities processing personal data should 
achieve a fair balance between the purpose and the means used to achieve it. In other 
words, the added value of the processing should not outweigh its potential negative 
impact.

Chapter 3 explains how these principles can be applied in practice.

Figure 2 shows how these principles can be used to assess whether an action might 
infringe the rights to respect for private and family life and data protection (see also 
Section 2.3.3 on complaints mechanisms). The stop and search case of Gillan and 
Quinton v. the United Kingdom illustrates how the ECtHR applied these principles to 
determine whether there had been an infringement of the right to data protection 
and privacy (see box on Case law).

Figure 2: Infringement of privacy and data protection – the assessment process

Figure 2: 

Infringement of privacy and data protection – the assessment process

Step

1

if

Step

2

if

Step

3

if

Step

4

if

Interferes with

does not interfere with

Step

2

Measure
adopted 

Privacy and/or
data protection



No violation 

is in accordance

is not in accordance

Interference

pursues 

does not pursue

Interference

Applicable
legislation

Legitimate
aim

Step

3

Violation 

Step

4

Violation 

is necessary in democratic society and
proportionate to the pursuit of that aim

Interference

is not necessary in democratic society
and proportionate to the pursuit of that aim



No violation 

Violation 

Source:  FRA, 2018 (based on Council of Europe (2003), The right to respect for private and 
family life: A guide to the implementation of Article 8 of the European Convention 
on Human rights)

36

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

Case law 

In Gillan and Quinton v. the United Kingdom, the applicants, two British 
nationals, sought to challenge the legality of stop and search powers used 
against them by way of judicial review.

Is the measure adopted prescribed by law? The measure was in accordance 
with Sections 44–47 of the Terrorism Act 2000, which established that: 1) for 
the prevention of acts of terrorism, senior police officers could authorise any 
uniformed police officer in a given area to conduct stop and search actions; 
2) authorisations were subject to confirmation by the Secretary of State and 
were time bound, but could be renewed indefinitely; 3) although the purpose 
of such search operations was to find items that could be used for acts of 
terrorism, stop and search actions did not have to be based on a suspicion 
that the person(s) stopped was carrying items of that kind; and 4) people 
refusing to undergo a search operation were liable to imprisonment, a fine, 
or both (Gillan and Quinton, para. 76-80).

Does the measure adopted interfere with privacy and/or data protection? 
The use of coercive powers by law enforcement authorities to stop a person 
and search their clothing and belongings represents a clear interference with 
the right to respect for private life. Its seriousness is amplified by the public 
exposure of personal information, which entails an element of humiliation 
and embarrassment (Gillan and Quinton, para. 63).

Assessment of proportionality and necessity: The court expressed a number 
of concerns about the proportionality and necessity of the law (Gillan and 
Quinton, para. 80-86):

•  the statutory standard for the authorisation of stops was not burdensome;

•  the breadth of the statutory powers is such that individuals face formidable 
obstacles in showing that any authorisation and confirmation is beyond 
the powers of the relevant authorities (ultra vires) or an abuse of power;

•  the geographical areas covered by the authorisation were very broad and 
the time limit was repeatedly extended, reducing the targeted nature of 
the authorisation;

37

•  restrictions on the discretion of individual officers were more formal than 

substantial;

•  there was little prospect of judicial remedy because the officer conducting 
the stop did not have to demonstrate the reasonableness of their suspicion; 
proving that the power had been improperly exercised was therefore 
almost impossible.

These considerations led the ECtHR to conclude that the relevant sections 
of the Terrorism Act were “neither sufficiently circumscribed nor subject to 
adequate legal safeguards against abuse”, and therefore violated Article 8 
of the ECHR.

For more information, see ECtHR, Gillan and Quinton v. the United Kingdom, 
No. 4158/05, 12 January 2010.

The legal requirements concerning profiling set out in the reformed EU data protec-
tion legal framework are detailed in Chapter 3.

1.3.  What are the potential negative impacts 
of unlawful profiling for law enforcement 
and border management?

Profiling based only on broad categories, such as race, ethnic origin or religion, is not 
only unlawful but may also have disadvantages for effective policing and border 
management authorities. This section looks at two potential negative impacts:

•  The greatest difficulty relates to the strain it can place on relations with com-
munities. Profiling can generate resentment among the communities particu-
larly affected, and reduce trust in the police and border management authori-
ties. This in turn can undermine the effectiveness of methods that rely on public 
cooperation.

•  There are also doubts about the effectiveness of using broad categories of pro-
files in border management or law enforcement, for instance if it results in an 
individual being falsely placed under suspicion.17

17 

FRA (2017d), p. 51.

38

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

In addition, where profiling is conducted in an unlawful manner, authorities will 
be open to complaints procedures or legal action. This can take the form of inter-
nal supervision through police complaints authorities, specialised complaints bod-
ies, supervisory authorities, or the civil and criminal court system (see Section 2.3). 
Individual officers and mid-level managers may be subject to administrative and/
or criminal sanctions as a result of their involvement in, or acquiescence to, unlaw-
ful profiling. This can place a drain on resources, as well as damaging authorities’ 
morale and reputation.

Key points

 

 

Unlawful profiling undermines trust in law enforcement and border man-
agement authorities, and can result in a deterioration in relations with local 
communities.

There are doubts about the actual effectiveness of using broad profiling to 
detect crime or in border management. Evidence is inconclusive about whether 
such profiling increases the success rate of law enforcement or border manage-
ment operations.

1.3.1. 

Impact on trust in the police and border 
management and good community relations

Research shows the negative impact the use of broad profiles can have on the indi-
viduals targeted and the communities to which they belong.18 The box below cap-
tures some individuals’ responses after being subject to a stop and search or border 
check.

Examples

Impact of stop and search actions and border checks on individuals

1. Police stops – Keskinen, S. et al (2018)

Between 2015 and 2017, the Swedish School of Social Science at the 
University of Helsinki interviewed 185 people about their experiences of 
ethnic profiling. The research indicated that most respondents found stops 

18 

FRA (2017d).

39

to be unpleasant, annoying or humiliating experiences. Below are some 
extracts of respondents’ testimonies.

“Then somewhat later, another police stopped me again […] while I was 
walking along the street with two white friends: one Finnish and the other 
Dutch. And did exactly the same thing … asking about the same question. 
I was pissed off because I did not know why I was being singled out. I asked 
them and they just claimed they are doing their job.” (Female, 30s, African 
country)

“Once my mum and my brother were outside walking in town and then 
the policemen stopped them and they said ‘Show us your passports’. And 
I consider that ethnic profiling. And then my brother [said in Finnish] ‘We don’t 
have our passports we don’t carry them all the time’. And then once they 
saw that he speaks fluent Finnish they were like ‘Oh never mind’. I was angry 
because I know ethnic profiling is illegal and my mom and my brother [they] 
didn’t know. So I felt like, you know, they were mistreated. So I was very 
angry. Once I told them that it’s illegal what happened to them like obviously 
they knew that they got stopped because they […] were not Finnish-looking, 
they were foreign-looking.” (Female, 20s, Somalia-Finland)

“They always have a similar description all the time. It makes me wonder, so 
for 11 years they’ve been looking for the same person who managed to elude 
you guys, you’re not doing a good job then, because the description they 
[border control] have is always similar, and I always match that description 
[laughter].” (Male, early 30s, African country-Finland)

For further information, see Keskinen, S. et al (2018), The Stopped – Ethnic 
Profiling in Finland.

2. Border checks – FRA (2014a and 2014b)

“I understand why [the border guard] stopped me but he didn’t have to send 
me here [second line check/police station], or treat me like a criminal. They 
do this with all Eastern Europeans”.
(Passenger from Serbia, male, interviewed at Frankfurt airport)

Question:“How do you think the treatment was at the first-line check?”

40

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

Reply:“I think it was not good. It was humiliating. He treated me badly. He 
just took my passport, looked at it and then just called immigration. He asked 
some questions and raised his voice, but I didn’t understand anything. They 
took me out of the line but they did not respect me and they made me scared.”

Q:“Why did you feel scared or humiliated?”

R:“Because I didn’t know what was going to happen and they couldn’t explain 
anything. And a lot of people were around and the guard talked with the other 
guards without talking to me. Then I had to wait and I still didn’t know why 
I was there.”
(Passenger from Angola, male, interviewed at Schiphol)

“I really understand the […] border guards. For them too, it is really difficult 
to work at the booths hours and hours! So, from time to time, they show 
negative attitudes, such as shouting, to people like us.” (Male, Turkish 
national, truck driver frequently crossing the border, Kipi)

The sum of these individual experiences may translate into negative group effects.19 
This can contribute to a marked deterioration in the relationship between the police 
and border management officials and members of minority communities subject to 
high levels of stop and search actions or enhanced border checks.

Case study 

The role of stop and search in public disorder (UK 2011 and France 2005)

Following riots in several major UK cities during August 2011, the London 
School of Economics and the Guardian newspaper interviewed 270 rioters 
about why they had participated in the riots. The study found that distrust 
and antipathy towards the police was a significant factor, and that “[t]he most 
common complaints related to people’s everyday experience of policing, with 
many expressing deep frustration at the way people in their communities 
were subjected to stop and search” actions.

For more information, see London School of Economics (2011).

19  United Nations (UN) (2007), para. 57.

41

Similar dynamics were identified in other EU Member States. In France, riots 
in November 2005 were found to be triggered by an event involving the 
accidental death of two minority youths while allegedly being pursued by 
the police (see Jobard, 2008, and Body-Gendrot, 2016).

For more information, see Hörnqvist (2016). 

Linked to this, profiling can result in increased levels of hostility in other encounters 
between individuals and the police or other law enforcement bodies. Greater hostil-
ity increases the chances that routine encounters will escalate into aggression and 
conflict, posing safety concerns for officers and community members alike.

More broadly, recent research shows that being stopped, arrested, convicted, or 
jailed tends to keep people away from other public services beyond the criminal jus-
tice system, such as health, employment, and educational organisations.20 Without 
undermining the legitimate reasons that lead to the arrest of convicted individuals, it 
should be borne in mind that the exclusion of already marginalised segments of the 
population from such institutions can undermine social inclusion and integration of 
minority groups.

Focus on FRA’s EU-MIDIS II findings 

In 2015 and 2016, FRA collected information from over 25,500 respondents 
with different ethnic minority and immigrant backgrounds across the 28 EU 
Member States.

What information was collected?

In relation to profiling, respondents were asked if they thought that they had 
been stopped by the police because of their immigrant or ethnic minority 
background and about the way they were treated by the police, including 
any experiences of physical assault by the police. The survey did not ask 
about encounters with border management

20  Brayne, S. (2014), pp. 367–391.

42

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

Figure 3: Most recent police stops perceived as ethnic proﬁling among
those stopped in the ﬁve years before the EU-MIDIS II survey,
by EU Member State and target group (%) 

Figure 3:  Most recent police stops perceived as ethnic profiling among 
those stopped in the five years before the EU-MIDIS II survey, 
by EU Member State and target group (%) a,b,c,d

FI
IE
PT
UK
LU
FR
DE
DK
SE
AT
IT
MT
Group average

R
F
A
S
S

AT
DE
DK
BE
SE
NL
Group average

R
U
T

FR
ES
BE
NL
IT
Group average

R
F
A
O
N

CY
UK
IT
EL
Group average

A
I
S
A
)
S
(

R
G
M
R

SI
PL
Group average

I

27
28
           35
                 38
                    40
                       42
                       42
                               47
                                       51
                                               56
                                                     60
                                                               66
                      41

  14
     16
      17
                 23
                              31
                                                  43
       17

      33
                             47
                                      52
                                                     61
                                                                     71
               38

       43
          45
           46
                                                                                    89
              47

5
       9
  6

BG
HU
SK
HR
ES
RO
CZ
EL
PT
Group average

A
M
O
R

                       19
                                     27
                                                  35
                                                                   45
                                                                     46
                                                                               52
                                                                                        57
                                                                                                 63
                                                                                                                                     84
                                                              42

N
M
S
U
R

I

LV
LT
EE
Group average

0
0
0
0

TOTAL EU-28

                                                   42

20 40 60 80 100

Notes: 

a 

b 

 Out of respondents who were stopped by the police in the five years 
before the survey (n=6,787); weighted results.
 Results based on a small number of responses are statistically less 
reliable. Thus, results based on 20 to 49 unweighted observations 
in a group total or based on cells with fewer than 20 unweighted 
observations are noted in parentheses. Results based on fewer than 20 
unweighted observations in a group total are not published.

43

 
                       
c 

d 

 Questions: “In the past five years in [COUNTRY] (or since you have been in 
[COUNTRY]), have you ever been stopped, searched or questioned by the 
police?”; “Do you think that THE LAST TIME you were stopped was because 
of your ethnic or immigrant background?”
 Acronyms for target groups refer to immigrants from [country/region] and 
their descendants: TUR = Turkey, SSAFR = Sub-Saharan Africa, NOAFR = 
North Africa, SASIA = South Asia, ASIA = Asia, ROMA = Roma minority.

Source:  FRA, 2017b

What do the results show?

Stops and ethnic origin: The results show that 26 % of all EU-MIDIS II 
respondents were stopped by the police in the five years before the survey. 
Of those stopped in the five years before the survey, 33 % said that this was 
because of their ethnic and immigrant background.

Perception of discrimination: On average, nearly every second respondent with 
Asian (47 %), Sub-Saharan (41 %) and North African (38 %) backgrounds who 
was stopped during this timeframe said they were stopped because of their 
immigrant or ethnic minority background. Similarly, among stopped Roma 
respondents, nearly every second person (42 %) believed this was because 
of their ethnic background. By contrast, this percentage is much lower among 
the stopped respondents with Turkish background (17 %) (see Figure 3).

Respect: The findings show that a majority (59 %) of all respondents 
who were stopped by the police in the five years before the survey felt 
that they were treated respectfully (25 % ’very respectful’, 34 % ‘fairly 
respectful’). One in four (24 %) said that the way the police treated them 
was ‘neither respectful, nor disrespectful’. Meanwhile, 17 % said that 
the police treated them disrespectfully (8 % ‘fairly disrespectfully’ and 
9 % ‘very disrespectfully’). Roma respondents and respondents with 
a North African background who were stopped indicated experiencing 
disrespectful behaviour by police during the most recent stop (25 % and 
21 %, respectively) more often than other target groups.

For more information, see FRA (2017b). 

44

Preventing unlawful profiling today and in the future: a guide 
 
Setting the scene: What is profiling? 

Focus on the importance and usefulness of collecting data on police stops

Of the 28 EU Member States, the United Kingdom is currently the only one 
where data collection on police stops systematically includes information 
on the ethnicity of those stopped (see also Section 2.2.5. and Section 2.3.1.).

The data collected measure the ‘stop and search rate’ for different ethnic 
groups in England and Wales. The ethnic categories used are those listed in 
the UK Census from 2001. This census identified 16 categories, which were 
merged into five broader groups:

•  White: English/Welsh/Scottish/Northern Irish/British; Irish; and any other 

White background.

•  Mixed/Multiple ethnic groups: White and Black Caribbean; White and Black 
African; White and Asian; and any other Mixed/Multiple ethnic background.

•  Asian/Asian British: Indian; Pakistani; Bangladeshi; and any other Asian 

background.

•  Black/African/Caribbean/Black British: African; Caribbean; and any other 

Black/ African/ Caribbean background.

•  Other ethnic groups: Chinese; and other ethnic groups.

The stop and search data collected compare the number of people stopped 
and searched from a particular ethnic group with the total number of people 
from that ethnic group living in the area, and then calculates a rate per 
1,000 people.

For 2016-2017, the analysis of the data collected shows that there were four 
stops for every 1,000 White people, compared with 29 stops for every 1,000 
Black people. The data also indicate that the highest rates were found among 
the three Black ethnic groups - Other Black (70 stops per 1,000 people), Black 
Caribbean (28 per 1,000 people) and Black African (19 per 1,000 people).

Without evidence provided by disaggregated data, it is difficult to prove 
whether there are differences in police action towards particular ethnic 
groups and – if this is the case – whether these differences might be the 
result of discriminatory profiling practices. Disaggregated data are available 
in the public domain in England and Wales, broken down by police force. This 

45

allows for the identification of differential practices between forces that 
either can be explained as legitimate, or which might be used to identify 
potential discrimination in policing practices. Data are also used at the level 
of individual police officers to identify discriminatory practices in their work.

For more information, see Gov.uk’s webpage on stop and search, the 
Independent Office for Police Conduct’s website and the Home Office’s 
website on open data about crime and policing. See also United Kingdom 
(2018). For guidance on recording methodologies, see Open Society Justice 
Initiative (2018b).

Case study 

Survey on relations between the police and the public in France

In 2016, the French Ombudsman (Défenseur des droits) conducted a survey 
on Access to Rights. The Défenseur des droits also acts as the national police 
complaints commission. The survey covered a representative sample of more 
than 5,000 people.

The first part of the report presents the results related to the behaviour of 
law enforcement authorities. Overall, the survey indicates good relations 
between the public and the police. The vast majority of respondents said 
they trust the police (82 %).

Looking specifically at identify checks, the survey shows that most people 
do not experience identity checks: 84 % of respondents said they have not 
been checked in the last five years (90 % of women and 77 % of men). Those 
who said they had been checked generally report low instances of behaviour 
breaching the security forces’ professional ethics during the most recent 
identify check, such as informal modes of address (16 %), brutality (8 %) or 
insults (7 %). However, 29 % reported a lack of politeness, and more than 
half of the respondents (59 %) who had been checked mentioned that the 
reasons for the check had not been explained. Generally, identity checks are 
perceived as being more legitimate when the security forces take the time 
to explain the reasons for the check.

46

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

The data also reveal that specific groups of people report more negative 
experiences. Young men aged 18-24 are nearly seven times more likely to 
experience frequent identity checks (i.e. more than five times in the last five 
years) than the general population, and men perceived as Black or Arab are 
between six and 11 times more affected by frequent identity checks than the 
rest of the male population. If we combine these two criteria, 80 % of men 
under the age of 25, and perceived as Arab or Black, have been checked at 
least once in the last five years (compared to 16 % of other respondents). 
Compared to the general population, this group is 20 times more likely to 
be subject to identity checks.

In addition, young men perceived as Black or Arab reported higher levels of 
problematic behaviour during the most recent identity check, such as using 
informal modes of address (40 % against 16 % of the total sample), insults 
(21 % against 7 % of the total sample), or brutality (20 % against 8 % of the 
total sample). These negative experiences and the frequency of checks are 
associated with a low level of trust in the police. Indeed, this group reported 
deteriorating relations with the police.

Finally, the results show that few respondents (5 %) who indicate breaches of 
professional ethics during identity checks take steps to report this situation. 
They mainly indicate that they do not report their experiences because these 
steps are considered as useless.

For more information, see Défenseur des droits (2017). 

Where broad profiles are applied to a minority group, it, in conjunction with other 
stigmatising policy actions, may lead this group to develop a negative perception of 
itself. In addition, the wider community may develop a negative perception of that 
group. The minority group may become a “suspect community”, associated by the 
public with criminality.21 This may result in increasing prejudice.

21 

European Monitoring Centre on Racism and Xenophobia (2006), p. 54.

47

The minority group may become targeted by a disproportionate amount of police 
resources which, in turn, is likely to lead to higher numbers of arrests or checks at 
the border. As a result, a self-fulfilling relationship between intensive policing and 
higher arrest rates can be established (see box).22

Focus on the risk of a ‘self-fulfilling prophecy’ 

When police officers base their profiling not on reasonable grounds but on 
prejudices, they are likely to interpret information in a way that confirms 
their own biases. This is called a ‘confirmation bias’. This happens when police 
officers’ prejudices mean that they expect an individual to act unlawfully 
based on the person’s actual or perceived race, ethnic origin, gender, sexual 
orientation, religion, or other protected ground. Because of this kind of 
bias, officers with such prejudices are likely to single out more individuals 
matching this description.

Since it is more likely that evidence of criminality will be found among 
individuals who are stopped than those who are not stopped, this bias-based 
profiling reinforces an officer’s existing stereotypes. This false ‘proof’ that 
the decision to stop these individuals was correct is called a ‘self-fulfilling 
prophecy’. Such bias-based profiling is discriminatory, unlawful, ineffective, 
and perpetuates stereotypes.

Figure 4 describes how the ‘self-fulfilling prophecy’ perpetuates the 
criminalisation of individuals.

22  Harcourt, B. (2004), p. 1329-1330; House of Commons Home Affairs Committee (2009), para. 16; and 

UN (2007).

48

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

Figure 4:  The cycle of the self-fulfilling prophecy

Figure 4: The cycle of the self-fulﬁlling prophecy

Individuals to be 

stopped only because 

they are or perceived

to be of one ethnic 

group

Some of the 

members of that 
ethnic group
stopped

are indeed
acting
unlawfully

Personal or
institutional
bias that
persons
belonging
to a speciﬁc
ethnic

group are
criminals

Stopping
people from
this ethnic
group is falsely
perceived as 
effective 

Self-fulﬁlling

prophecy perpetuating 

discrimination

Source:  FRA, 2018

1.3.2.  The effectiveness of profiling 

There are also doubts about the effectiveness of using profiling based on broad cat-
egories to detect crime. It is unclear whether profiling actually increases the success 
rate (or ‘hit rate’) of law enforcement operations.

Some evidence suggests that the rates at which individuals are stopped does not 
necessarily correspond to offending rates among different ethnic or racial groups 
(see box). It should be noted that criminal justice data in most EU Member States do 
not allow for an overview of the progress of an individual case through the criminal 
justice system. As such, it cannot be determined whether an arrest results in pros-
ecution and sentencing.

Case study 

Changed search patterns lead to a higher ‘hit rate’ (1998-2000, USA)

In 1998, 43 % of the searches US Customs performed were on Black and 
Latino people, a far higher rate than their proportion among travellers. 
A particularly large number of searches, including invasive x-rays and strip 

49

searches, were carried out on Latina and Black women suspected of being 
‘drug mules’. This was based on a profile that relied heavily on nationality 
and ethnicity. The hit rates for these searches were low across all groups: 
5.8 % for ‘whites’, 5.9 % for ‘blacks’ and 1.4 % for ‘Latinos’. It was particularly 
low for ‘Latina’ women, who were in fact the least likely to be carrying 
drugs on or in their bodies. In 1999, US Customs changed its procedures, 
removing race from the factors to consider when making stops. Instead, 
observational techniques focusing on behaviour such as nervousness and 
inconsistencies in passenger explanations, more intelligence information, and 
closer supervision of stop and search decisions were introduced. By 2000, the 
racial disparities in customs searches had nearly disappeared. The number 
of searches carried out dropped by 75 % and the hit rate improved from 
just under 5 % to over 13 %, and became almost even for all ethnic groups.

For more information, see Harris (2002), USA (2000).

Ineffectiveness of unlawful profiling (2007-2008, Hungary)

Research  conduc ted  in  H ungar y  showed  that  Roma  people  were 
disproportionately targeted for identity checks. About 22 % of all people 
checked by the police belonged to the Roma community, when the proportion 
of Roma people in the population was around 6 %. The disproportionately high 
number of identity checks on Roma people was not reflected in evidence of 
unlawful behaviour: 78 % of identity checks involving Roma individuals resulted 
in no action taken by the police, and 19 % were linked to a petty offence* 
(compared to 18 % of checks on the general population). In addition, the arrest 
rates for the Roma community and the general population were similar.

For more information, see Tóth, B.M. and Kádár, A. (2011). 

*  “Petty offences are quasi-criminal offences, the gravity of which does 
not reach the criminal level (i.e. they are not regulated in the Criminal 
Code). Petty offences range between offences that are punishable by 
a 60-day incarceration, such as prostitution or physical threats, to those 
punishable by less severe measures (e.g. a fine, confiscation of goods, 
or ban on entering certain events). Examples for such offences are petty 
theft or traffic infractions.” See Kádár, A., Körner, J., Moldova, Z. and Tóth, 
B. (2008), p. 23.

50

Preventing unlawful profiling today and in the future: a guideSetting the scene: What is profiling? 

There are also questions concerning the reasons why certain individuals are 
stopped. A UK study reported that “[a]n alarming 27 % (2,338) of stop and search 
records examined […] did not contain reasonable grounds to search people, even 
though many of these records had been endorsed by supervisors”. 23 This, the 
research found, suggests that “police forces may not be fully complying with the 
requirements of the public sector equality duty, which requires them to have due 
regard to the need to eliminate unlawful discrimination and promote equality of 
opportunity, foster good relations and to that end, ensure that they are adequately 
collecting, analysing and publishing data to demonstrate that they have sufficient 
information to understand the effect of their work.”

23  United Kingdom, Her Majesty’s Inspectorate of Constabulary (HMIC), (2013), p. 6.

51

2. 

2 

Lawful profiling: 
principle and practice

This chapter focuses on profiling by frontline police, in particular stop and search 
actions, and border management officers, in particular referrals to further ‘second 
line’ border checks. It explains the main principles and practices that can help to 
reduce the risk of unlawful profiling. These measures can be taken at both manage-
ment and operational levels. It takes into account the different legal and practical 
contexts of stop and search actions and border checks.

In the context of border management, the Schengen Borders Code (Regulation (EU) 
No 2016/399)24 establishes unified rules governing border controls at the external 
borders of the EU. This means that some of the principles outlined in this chapter – 
for example, concerning the information that must be given to third-country nation-
als subject to a second line check – are prescribed in law and binding on Member 
States. In addition, Frontex has an important role in promoting a consistently high 
standard of border controls. In particular, the 2016 European Border and Coast Guard 
Regulation requires Member States to follow the common core curricula developed 
by Frontex when training border guards. Published in 2012, the Common Core Cur-
riculum contains a fundamental rights component which also includes profiling (see 
Section 2.2.3 on targeted training).

24  Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union 

Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 
23 March 2016.

53

Focus on the grounds for a second line check at the border 

The systematic nature of border controls means that every traveller 
undergoes a basic first line check where travel documents and any other 
entry requirements are checked. In addition, some travellers may be referred 
to a further, second line check. This can be for a variety of reasons: a hit 
in a database, a suspicious travel document, matching a risk profile, or 
exhibiting suspicious behaviour.

During the first line check, the border guard can draw on information 
obtained by comparing data in the machine-readable travel document 
(which includes biometric identifiers) with data stored in national, EU and 
international databases such as the Schengen Information System, the Visa 
Information System, and Europol and Interpol databases. In practice, a referral 
to a second line check often occurs as a result of a hit in one of the databases.

However, a person can also be referred to a second line check for other 
reasons, for example, when a person matches a risk profile or the officer 
has other suspicions about the person. The EU Schengen Catalogue states 
that in addition to carrying out border checks according to the Schengen 
Borders Code, the goal of first-line checks should be to profile passengers 
and pick out suspicious persons for thorough second line checks.* Border 
guards therefore need to assess a combination of other indicators and criteria 
to establish whether a person could be attempting an irregular entry, might 
pose a security risk or, for example, may be a victim of human trafficking. 
Whether they apply a specific existing risk profile or not, in these situations 
border guards use profiling.

The need to ensure a smooth circulation of travellers means border guards 
have limited time to conduct an objective assessment of whether to subject 
a person to a second line check. Information from Frontex shows that officials 
in the EU Member States have on average just 12 seconds to decide whether 
they should single out an individual for a further check.** This puts them 
under significant pressure to make a correct decision quickly.

*  Council of the European Union (2009), Recommendation 43.
**  European Border and Coast Guard Agency (FRONTEX) (2015). 

54

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

The principles and practical tools in this chapter offer information to encourage dis-
cussion and action that can help officers and their wider organisations keep their 
profiling activities within the law. The three key principles discussed are:

•  Respect individuals’ dignity.

•  Ensure that profiling is based on reasonable and objective grounds.

•  Guarantee accountability.

Linked to each is the underlying importance of ensuring that police officers and bor-
der guards operate within the law when using profiling.

2.1.  Respecting individuals’ dignity

Key points

 

 

 

 

Ensuring a good quality encounter does not in itself eliminate discriminatory pro-
filing. However, it is likely to make any encounter more successful and reduce the 
potential negative impact of stop and search actions. In border management, pro-
fessional and respectful conduct is a legal obligation.

Professional and respectful conduct generally increases a person’s satisfaction 
with the encounter.

Explaining the reasons for stopping a person helps boost confidence in police 
and border management operations, and reduces the perception of discrimina-
tory profiling.

Respect and politeness never justify unlawful border checks or police stop and 
search actions.

Respecting the dignity of individuals is not only a fundamental right in itself but 
a core principle of police and border management operations. In frontline opera-
tions, the way police and border management officials speak to and engage with 
the individuals they stop, and the information they provide, is crucial.

It should always be remembered that, no matter how polite and professional offic-
ers are, singling individuals out is still an intrusive experience that must always be 
based on lawful grounds. Perceptions of discriminatory profiling are also linked to 

55

the frequency and number of interactions with the police and border management 
authorities. This underlines the importance of ensuring that there are always objec-
tive and reasonable grounds for stopping someone.

What do the standards say?

“Border checks should be carried out in such a way as to fully respect human 
dignity. Border control should be carried out in a professional and respectful 
manner and be proportionate to the objectives pursued.”

Recital 7 of the Schengen Borders Code

“All travellers have the right to be informed on the nature of the control 
and to a professional, friendly and courteous treatment, in accordance with 
applicable international, Union and national law.”
Section 1.2 of the Practical Handbook for Border Guards (Schengen Handbook)

“Police personnel shall act with integrity and respect towards the public 
and with particular consideration for the situation of individuals belonging 
to especially vulnerable groups.”

Recommendation 44 of the European Code of Police Ethics

Ensuring that police officers and border guards are courteous and informative in 
tense and difficult situations is not always easy. However, evidence shows that 
setting a respectful tone significantly increases the level of satisfaction with the 
encounter.25 Figure 5 illustrates some elements of a respectful encounter.

Some elements of border checks are regulated by the Schengen Borders Code, such 
as the requirements to carry out checks in a professional and respectful manner 
or to give information on the purpose of and procedure for the check (Schengen 
Borders Code, Recital 7, Article 7 and Article 8 (5)). Use of a common language, on 
the other hand, is not an absolute requirement in the border management context 
due to the inherently varied nature of border traffic. The Schengen Borders Code 
does, nevertheless, require Member States to encourage border guards to learn 
the languages necessary for carrying out their tasks (Article 16 (1)). The Schen-
gen Catalogue, which contains a set of recommendations and best practices for 
external border control, further recommends that border guards have the ability to 

25 

FRA (2014b).

56

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Figure 5: Three elements of a respectful encounter

Figure 5:  Three elements of a respectful encounter

1

Behave professionally and respectfully, 
avoiding discriminatory, degrading, 
humiliating, or prejudiced behaviour.

2
3

Where possible, use language 
understood by the person to 
ensure effective communication.

Explain the purpose of the 
search or check, and the 
grounds for conducting it.

Source:  FRA, 2018

communicate in foreign languages related to their daily duties. As a best practice, it 
refers to a satisfactory knowledge of neighbouring countries’ languages, as well as 
other languages depending on the nature of the border traffic. Ideally, officers with 
appropriate language skills should be included in every shift.26

The lack of consideration and respect during police stops may have direct effects on 
the effectiveness of policing (see Section 1.3.2). The Police and Criminal Evidence 
Act Code of Practice developed in the United Kingdom states that: “All stops and 
searches must be carried out with courtesy, consideration and respect for the person 
concerned. This has a significant impact on public confidence in the police. Every 
reasonable effort must be made to minimise the embarrassment that a person 
being searched may experience.”27

Some important components of respecting dignity, such as providing explanations 
for the stop and ensuring that individuals are given the opportunity to express 
their views, are basic parts of police and border management procedures. Stop and 
search forms can help to provide a structured way to provide this information (see 
Section 2.3.1).

In the border management context, standard forms are a useful tool to inform trav-
ellers of the purpose of and procedure for the second line check. They can facili-
tate communication with travellers, provided they are distributed with and supple-
mented by further oral explanations when necessary. The Schengen Borders Code 

26  Council of the European Union (2009), Recommendations 27 and 41.

27  United Kingdom, Home Office (2014a), Section 3.1.

57

requires that people subject to a second line check should be given written informa-
tion in a language that they understand, or could reasonably be presumed to under-
stand, on the purpose of and procedure for the check. The information should:

•  be available in all EU official languages and the languages of the countries bor-

dering the country concerned;

• 

indicate that the traveller can request the name or service identification number 
of the official carrying out the check, the name of the border crossing point, and 
the date that the border was crossed.

Those elements of a respectful encounter associated with communication and inter-
personal skills are more difficult to set out in operating procedures, and may require 
further investment in training. Difficulties in setting a positive tone for the encounter 
may arise from:

• 

limited communication skills;

• 

inability to articulate the reason for the action; and

• 

failure to overcome personal and institutional biases and negative stereotypes, 
as well as built-up hostilities within sections of the community.

58

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

2.2.  Reasonable and objective grounds

Key points

 

 

 

 

Law enforcement and border management actions based on specific and up-to-
date intelligence are more likely to be objective.

To be lawful, stop and search actions and referrals to second line border checks 
must be based on reasonable and objective grounds for suspicion. ‘Gut feeling’ 
is not a reasonable or objective ground for stopping and searching a person or 
referring a person to a second line border check.

Protected characteristics such as race, ethnic origin, gender or religion can be 
among the factors that law enforcement authorities and border guards take into 
account for exercising their powers, but they cannot be the sole or main reason 
to single out an individual.

Profiling that is based solely or mainly on one or more of the protected grounds 
amounts to direct discrimination and is unlawful.

Objectivity is an important principle of police and border management work. In the 
context of profiling, individuals should only be stopped and searched or made sub-
ject to second line border checks on the basis of reasonable and objective grounds 
for suspicion. Objective justifications may include the individual’s behaviour, specific 
intelligence, or circumstances that link a person or persons to suspected unlawful 
activity.

Ensuring objectivity in profiling requires:

•  avoiding bias, including through clear guidance and targeted training; and

•  making effective use of intelligence and information.

2.2.1.  Avoiding bias

The European Code of Police Ethics provides guidance on police conduct in areas 
including police action and intervention, police accountability and police super-
vision.28 It underlines the general principle that: “[t]he police shall carry out their 

28  Council of Europe, Committee of Ministers (2001), Recommendation Rec(2001)10 of the Committee of 

Ministers to Member States on the European Code of Police Ethics, 19 September 2001.

59

tasks in a fair manner, guided, in particular, by the principles of impartiality and 
non-discrimination”.29

Singling out individuals by using as the single or determinative factor their actual or 
perceived race, ethnic origin, gender, sexual orientation, religion, disability, or other 
prohibited grounds violates fundamental rights. It can also have significant negative 
consequences for both public authorities and communities (see Section 1.3).

Discriminatory profiling can reflect both individual and institutional biases. In addi-
tion to personal biases, stereotypes and discriminatory behaviour towards individu-
als might arise from specific practices within law enforcement and border manage-
ment authorities. Making institutional procedures and practices more transparent 
can help address discrimination and the perpetuation of stereotypes.

Recognising deeply held biases can be difficult. Police officers and border manage-
ment officials may believe that they single out individuals based on reasonable and 
objective grounds, (such as behaviour) when these decisions actually reflect their 
biases.

When stopping individuals, officers often link the reason for singling out one spe-
cific person to a ‘gut feeling’ or ‘intuition’. This is likely to be based on a combination 
of expertise and past experiences but may also reflect a conscious or subconscious 
bias of the officer. To avoid unlawful profiling, officers should reflect on whether 
their decision is justified by objective information. ‘Gut feeling’ itself is not a reason-
able or objective ground for stopping and searching a person or subjecting a person 
to a further check at the border.

2.2.2.  Clear guidance to officers

Practical, understandable and ready to use guidance is of particular importance in 
helping frontline law enforcement and border management officers avoid unlawful 
profiling. Guidance can come in many forms: it can be attached to legislation, issued 
by law enforcement and border management authorities themselves, or delivered 
on a daily basis by senior officers. Using real-life examples to show what to do in 
particular situations is likely to be more effective than an explanation of rules and 
procedures.

29 

Ibid., para. 40.

60

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Officers in management positions must inform staff that actual or perceived race, 
ethnic origin, gender, sexual orientation, religion, or other prohibited grounds for 
discrimination cannot be the determining factor for initiating law enforcement or 
border management action against an individual. Clarifying when and how personal 
characteristics can be used can help to reduce the risk of differing interpretations, 
as well as reliance on stereotypes and prejudices. Guidance should also cover issues 
related to privacy and data protection.

Table 3 shows some of the types of guidance that can be used and important fea-
tures that should be taken into account.

Table 3: 

Types, characteristics of guidance and stakeholder involvement

Types of guidance

•  standard operating 

procedures

•  codes of conduct
•  regular guidance from 

senior officers

Characteristics of 
guidance

•  detailed and specific
•  covering all activities 
where bias-based 
profiling may occur:
•  stop and search
•  arrests
•  border checks
•  use of force, etc.

Stakeholder 
involvement

•  develop guidance with 
other stakeholders

•  make guidance available 

to communities

•  encourage feedback 
from communities on 
the guidance

Source:  FRA, 2018

Case study 

Code of practice and the ambassadors approach (Dutch police)

The Dutch police has developed a code of practice together with civil society 
organisations, such as Amnesty International, which describes the four 
principles of a professional stop:

 A legitimate and justifiable selection of persons.

 Explanation of the reason behind the stop and search.

 Use of professional communication.

 Officers to reflect on their practices and provide feedback to each other.

61

Altering practices that are not perceived as problematic, for instance the 
practice of proactive policing that may result in ethnic profiling, is difficult. 
Police in Amsterdam have developed a bottom-up approach involving field 
officers (ambassadors) in the teams, assisted by their managers and trainers. 
The first step is to raise awareness by showing and discussing the impact of 
proactive stops on the individuals targeted, and by introducing an alternative 
framework which is fair and effective. The second step is for officers to 
embrace this new practice.

For more information in Dutch, see the police’s website. 

2.2.3.  Targeted training

Training for police officers and border guards is another important tool in minimis-
ing the risk of unlawful profiling. There are many different types of training, which 
can occur at different stages of an officer’s career, including: initial recruit train-
ing, in-service training and on-going professional development. Irrespective of the 
type, training modules should take into consideration the organisational culture and 
offer courses that incorporate strategies to replace and counter stereotypes. Lastly, 
evaluation of the impact of training is crucial to monitor how training contributed 
to changing officers’ perception and improving their practice, and to identify gaps 
where further training may be required. Figure 6 highlights some issues to consider 
when developing targeted training.

Certain types of law enforcement or border guard training are already well devel-
oped in some countries, such as ‘diversity training’ and ‘sensitivity training’. Diversity 
training tries to address personal feelings about ethnicity, differences, and stereo-
types, and how these influence our daily lives. However, some diversity courses do 
not necessarily discuss discrimination. Some studies argue that cultural and diver-
sity training can in fact single out and reinforce differences, increasing, rather than 
reducing, stereotyping.30 ‘Cultural sensitivity training’ (as opposed to ‘general diver-
sity training’) aims to educate police and law enforcement officers about the cul-
ture of specific ethnic groups that they frequently encounter but with whom they 
are not familiar. Such training addresses the ‘dos and don’ts’ and provides guidance 
on politeness as viewed through different ethnic, religious, or national perspectives. 
Cultural sensitivity training is most effective when developed and delivered with the 
assistance and participation of people from the relevant communities.

30  Wrench, J. (2007).

62

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Figure 6: The process and objectives of developing targeted training
Figure 6:  The process and objectives of developing targeted training

Needs
assessment

Targeted
training

Goals
and impacts

What are the institutional 
contexts and legislative 
frameworks that regulate 
law enforcement and border 
management actions?

Are current rules and 
practices perpetuating 
explicit and/or implicit 
biases and negative 
stereotypes among staff?

To enhance ability to
detect biases, stereotypes
and prejudices

To improve knowledge on 
non-discrimination and data 
protection law, including 
consequences and costs
of unlawful acts

To enhance communication 
skills and provide advice on 
how to build public trust

Raise awareness of
how to address biases, 
stereotypes and prejudice

Eliminate biases, 
stereotypes and prejudice

Build trust and enhance 
cooperation with local 
communities 

Source:  FRA, 2018

Case study 

Training on lawful profiling

Training on profiling for police officers (Italy)

Since 2014, the Italian Observatory for Security against Acts of Discrimination 
(Osservatorio per la sicurezza contro gli atti discriminatori) has been 
implementing a training module on ethnic profiling for police officers 
and cadets. It focuses in particular on assumed biases that may influence 
profiling; the consequences in terms of efficiency of police activities; and the 
negative impact on relationships with communities. About 5,000 people have 
participated in the training module so far. Since 2017, an e-training module 
has also been provided in the framework of refresher courses for police.

For more information, see the website of the Italian National Police.

63

Fundamental rights tool in border guard training (EU)

The Common Core Curriculum (CCC) for European border guards sets out 
the minimum standard of skills and knowledge that every European border 
guard must have. It contains chapters on Sociology and on Fundamental 
Rights. There are specific sections on non-discrimination (1.5.4) and on ethnic 
profiling (1.7.10), which trainers can use. The CCC highlights potential risks 
linked to prejudices, racism, racial discrimination, xenophobia, Islamophobia, 
homophobia, and other related intolerances when conducting profiling. The 
2017 update of the CCC includes sections on new competencies, especially 
in the field of fundamental rights.

In addition, Frontex developed a trainers’ manual in consultation with 
universities and international organisations (see Frontex, 2013). It provides 
trainers with methodologies to improve the knowledge and skills of border 
guards in the field of fundamental rights and international protection. The 
manual explicitly mentions profiling and sets out basic rules for avoiding 
discrimination. Training is provided on a regular basis. However, there is no 
permanent mechanism in place to assess the attainment of training goals.

For more information, see Frontex (2012).

Profiling study days for senior officers (Belgium)

In 2015, the Centre for Policing and Security (CPS) based in Ghent (Belgium), 
with the involvement of the Belgian equality body (Unia), organised a study 
day on ethnic profiling (Profilage ethnique: l’égalité sous pression?). It covered 
different aspects of the issue, including: whether and how police officers 
with migrant backgroundscan improve relationships with ethnic minority 
communities; how often ethnic profiling is used by police officers, and how 
it has been evaluated.

In 2016, Unia organised two study days for senior police officers from 
northern Brussels to raise awareness on ethnic profiling and promote 
reflection on the identification of profiling practices by frontline officers. 
Police officers from Spain and the United Kingdom introduced good practice 
examples to an audience composed of law enforcement officers, researchers 
and NGOs. In particular, they demonstrated that by reducing profiling based 
on ethnic origin, successful arrests of wanted persons increased. They 

64

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

pointed out that this was made possible by keeping correct records of every 
stop, as well as ensuring transparency concerning the motives behind the 
stops. The training aimed at establishing a common understanding of ethnic 
profiling practices to support the future development of research on the 
practices currently implemented by the police in this area

For more information, see Belgium (2015 and 2017). 

Training should address biases and stereotypes that might be embedded in law 
enforcement and border management institutions themselves. The broader insti-
tutional context and the internal policies in place – such as existing complaints 
mechanisms, the presence of a “code of silence” among colleagues, etc. – should 
be examined before conducting training on preventing unlawful profiling. Curricula 
should address biases and stereotypes integrated in policing actions such as stop 
and search actions, arrests, detention and the use of force.

High-ranking or mid-level officers have a key role to play in making training success-
ful, as both participants and in the importance they attach to training.31 As recipi-
ents, senior officers can learn new practices and skills which they can pass down 
to frontline officers. Organisational culture, largely set by senior management, has 
a substantial impact on the everyday behaviour of police officers and border guards, 
including how they interact with the public.

Senior officers can also ensure that training is viewed positively. The behaviour of 
staff in management positions, for example how supervisors communicate the pur-
pose of training to officers or whether officers think they are selected randomly or 
because they are ‘problematic officers’ can affect the level of interest and engage-
ment in the training. Encouraging officers to participate actively in training pro-
grammes and be open to behavioural change to improve their daily work is likely to 
enhance the impact of training.32

Once training is completed, it should be reviewed and evaluated to assess its impact 
on raising awareness and changing behaviour.

31 

See European Commission (2017b).

32  Miller, J. and Alexandrou, B. (2016).

65

Focus on the guiding principles of training 

Specialised training is key to ensuring a lawful use of profiling. The European 
Commission developed a compilation of key guiding principles on how 
to ensure effective and quality training as regards hate crime. The same 
principles apply to training on lawful profiling.

Hate Crime Training for Law Enforcement and Criminal Justice Authorities: 
10 Key Guiding Principles

Ensuring Impact and Sustainability:

 Embed training within a broader approach to tackling discrimination.

 Develop a methodology to address training needs.

Identifying targets and building synergies:

 Customise programmes based on your personnel.

 Cooperate with civil society in a structured manner.

Choosing the right methodology:

 Combine different methodologies.

 Train the trainers.

Conveying quality content:

 Design a training curriculum of quality content.

 Develop training modules targeting discrimination.

Monitoring and evaluating outcomes:

 Link training to performance review processes.

 Ensure regular monitoring and evaluation of your training methods.

For more information, see European Commission (2017a). 

66

Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Training in isolation will not, however, be effective in countering officers’ implicit 
biases. What is needed is a shift in institutional thinking. Authorities must therefore 
consider multifaceted interventions to counter personal and institutional biases (see 
case study).

Case study 

Addressing ‘institutional racism’ in the police

Following concerns about the role of race in police mishandling of the 
investigation into the racist murder of Stephen Lawrence in the United 
Kingdom, the UK government set up a wide-ranging inquiry to identify 
“the lessons to be learned for the investigation and prosecution of racially 
motivated crimes”.

The report of the inquiry, published in 1999, highlighted the issue of 
‘institutional racism’ in the Metropolitan Police, including the disparity in 
stop and search figures, as a matter of considerable concern to affected 
communities. The recommendations of the inquiry, ranging from racism 
awareness training to reporting and recording of incidents, were framed by 
an overall call for increased openness, accountability and the restoration of 
confidence by the police service.

Reviews published in 2009, ten years after the inquiry, highlighted 
improvements in the way police interact with ethnic minority communities 
and investigate racially motivated crimes. However, they note that Black 
people remain much more likely to be stopped and searched than their 
White counterparts.

For more information, see United Kingdom, Home Office (1999), United 
Kingdom, Equality and Human Rights Commission (2009), and United 
Kingdom, House of Commons Home Affairs Committee (2009).

67

2.2.4.  Reasonable grounds for suspicion: making use 

of intelligence and information 

When police officers and border management officials single out an individual, they 
typically base their decision on a combination of elements. This can include more ‘objec-
tive’ information such as specific intelligence, behaviour, clothing or the objects that the 
individuals carry with them, as well as ‘subjective’ knowledge based on experience.

All of these elements can represent a ‘signal’ of illegal activity. However the infor-
mation must be combined and used with caution. Evidence shows that officers can 
find it difficult to distinguish between objective and subjective elements in practice, 
as in the Example quoted in the box.

Examples

“It’s very subjective. It’s your feelings about a person and a case, but 
there are also evidential issues of discrepancies in what they’re saying, 
inconsistencies between them and what their sponsor says, inconsistencies 
between what they’re saying and their paperwork, between what they’re 
saying and all the stuff they might have in their bags. So there’s evidence, 
but [these things alone would not] completely go against someone. It’s the 
whole picture that the officer has to build about a person.”
(Immigration officer at major UK airport)

For more information, see FRA (2014a), p. 46.

Focus on identifying persons attempting to enter a country in an irregular 
manner

FRA research conducted in 2012 at major airports reveals that border guards 
take into account a number of factors when deciding whether an individual 
could be attempting to enter the country in an irregular manner. These often 
include a combination of ‘objective’ criteria – such as the person’s behaviour 
when approaching the checkpoint and during the check, type and amount 
of luggage, and the validity of travel documents – and personal experience 
of past border checks, as Figure 7 shows.

68

Preventing unlawful profiling today and in the future: a guideFigure 7: Indicators considered helpful or very helpful for effectively
recognising persons attempting to enter the country in an irregular
manner before ofﬁcers speak to them (%)

Lawful profiling: principle and practice

Figure 7: 

Indicators considered helpful or very helpful for effectively 
recognising persons attempting to enter the country in an irregular 
manner before officers speak to them (%)

Behaviour during the check 

Behaviour when approaching a checkpoint

98

96

Nationality

Validity of documents

Destination

Place of embarcation

90

89

85

84

Appearance and behaviour of co-travellers

82

81

80

79

73

72

63

Criminal history, if accessible/applicable

Amount of luggage

Ethnicity

Type of luggage

Clothing

Type of airline

Other (frequency of borders
crossings, unjustiﬁed travel, etc.)
Age

57

57

Gender

33

20 40 60 80 100

Note: 

Valid responses range between 206 and 216 out of 223. Respondents who did 
not provide an answer to a given item have been excluded when computing the 
results. Non-responses range from seven to 17 persons, depending on the item.

Source:  FRA, Border guard survey, 2012 (question 17)

Border guards identified behaviour during the check or when approaching 
a checkpoint as the most helpful factor in recognising people trying to enter the 
country in an irregular manner. However, factors such as nationality and ethnicity, 
which could indicate discriminatory profiling, were also viewed as significant.

69

Clothing, which was also considered a useful indicator, is an example of how 
apparently ‘objective’ information may be used in a biased way in practice. 
Certain types of clothing may be linked to specific risk profiles. For example, 
victims of trafficking in human beings of a certain nationality may typically 
wear particular types of clothing. However, clothing can also indicate that 
a person belongs to a specific ethnic or religious group. Even if there are 
sufficient other reasons to justify a referral to a second line check, persons 
who strongly identify with their ethnic or religious background, have prior 
negative experience or do not receive an adequate explanation from the 
officer, may perceive the treatment as discriminatory.

For more information, see FRA (2014a). In relation to profiles of trafficking 
victims, see Frontex (2017).

Good intelligence on patterns of behaviour or events can increase objectivity in pro-
filing. This could relate to criminal activities or, in the case of border management, to 
irregular migration or cross-border crime. When law enforcement and border man-
agement actions are based on specific and timely intelligence, such as information 
about a specific person and/context, they are more likely to be objective and less 
likely to be based on stereotypes.

In addition to intelligence and objective elements, information about protected char-
acteristics such as actual or perceived race, ethnic origin, nationality, gender or reli-
gion may be used legitimately as an added component in profiling assessments in 
certain circumstances. For use of this information to be lawful, it must be regulated 
by law, respect the essence of the rights and freedoms affected, be proportionate 
(i.e. complying with a balance of interests) and necessary (i.e. there should not be 
any less restrictive means available). There must be a justifiable reason, other than 
the protected grounds, for the officers to treat an individual differently from other 
members of the public. The reason must also specifically relate to the particular indi-
vidual, as in the example outlined in the box.

Examples

Witnesses report that the suspect in a robbery was wearing red running shoes 
and a black baseball cap, is 1.60 to 1.70 meters tall, and perceived to be of Chinese 
origin. Under these circumstances, law enforcement authorities could legitimately 
consider ethnic background as relevant to determining whether an individual 
becomes a potential suspect, as it is combined with specific intelligence.

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Focus on detailed suspect descriptions 

Good suspect descriptions can reduce the risk of unlawful profiling. A suspect 
description consists of details about the person, such as the colour of skin, 
hair and eyes, height and weight, and clothing. These details are provided by 
the crime victim or witnesses, or on the basis of other specific intelligence. 
A good suspect description can be used by officers as the basis for stop and 
search actions aimed at detaining suspects, or for referring persons at border 
controls for a second line check.

However, when law enforcement officers receive an overly general suspect 
description that features race, ethnicity, or similar characteristics, they should 
not use that description as the basis for operations. In such cases, operations 
are likely to result in many stops of innocent people who happen to share the 
same characteristics. Rather, they should seek further specific operational 
intelligence to guide the investigations.

For more information, see European Commission (2017b). 

Information that seems objective can actually incorporate biases. Apparently objec-
tive factors, such as time, day, location, etc. can be used as a proxy for prohibited 
grounds of discrimination such as actual or perceived race, national origin, gender, 
sexual orientation or religion, as the example below shows.

Examples

A stop and search operation is conducted around midday on Friday in area 
X. However, this period is the most important prayer time for Muslims. As 
area X is close to a mosque, the supposedly objective factors of time, date 
and place could actually act as proxies for a stop and search operation based 
on the prohibited discriminatory ground of religion.

Similarly, looking for certain suspicious behaviour may seem like an objective way to 
identify possible wrongdoings. However, officers may interpret a person’s behaviour 
in different ways, depending on other characteristics of the person concerned. Evi-
dence shows that working knowledge and understanding of intelligence may differ 
greatly between officers and often does not correspond to actual crime patterns.33

33  United Kingdom National Policing Improvement Agency (NPIA) (2012).

71

Providing timely and detailed intelligence to officers, for instance at ‘pre-shift briefings’ 
at the start of each shift, should reduce discretion and provide officers with guidance 
on how to target their powers more specifically at current crime patterns and identi-
fied safety issues. This reduces the role of bias. Improving the quality and use of intel-
ligence to focus on behavioural factors or specific information is most effective when 
combined with increased supervision and monitoring of how officers use their powers.

Case study 

Ensuring objectivity in profiling 

Pre-shift briefings (EU) 

The Schengen Catalogue recommends that before each shift, the officer on duty 
provides information on any risk indicators and risk profiles. Ensuring overlaps 
between shifts can provide enough time for exchanges of information between 
staff on outgoing and incoming shifts, and adequate briefing.

For more information, see Council of the European Union (2009).

The SDR training programme (The Netherlands) 

The Search, Detect and React (SDR) training programme is aimed at preventing 
crime or terrorist acts before they occur by enhancing the capacity of security 
personnel with respect to behavioural profiling. This means drawing attention 
away from unalterable characteristics such as skin colour, and focusing instead 
on individual behaviour when making choices about police action. As indicators 
of suspicious behaviour are context-specific, the training is nuanced according to 
the environment. It rejects the idea that a one-size-fits-all solution exists. Having 
detected relevant patterns of conduct, officers are required to act in a ‘sensitive’ 
manner. In most cases, they will have an informal conversation with the suspect 
rather than use any formal police powers. The programme entails classroom 
teaching in addition to applied and on-the-job training.

For more information, see the SDR Academy’s website.

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

The stop and search Authorised Professional Practice (APP) tool (United 
Kingdom)

The College of Policing in the United Kingdom has developed Authorised 
Professional Practice (APP) guidance covering various aspects of police work. 
The APP on stop and search explains what a stop and search is, why it is important 
to use these powers correctly, and the features of lawful stops and searches. It 
explains that the lawfulness and effectiveness of stop and search encounters 
will be supported by ensuring:

•  Fairness: the officer’s decision to stop and search a person must be based 
only on appropriate, objective factors. A person can never be stopped solely 
or mainly on the basis of protected characteristics or factors such as previous 
convictions.

•  Legality: the stop and search must have a legal basis that is applied lawfully.

•  Professionalism: during stop and/or search encounters, officers must 
comply with professional standards of conduct, especially the Code of Ethics, 
communicate effectively with people and treat people with dignity and respect.

•  Transparency: the individual encounter must be accurately recorded. Effective 
supervision and monitoring of stops and searches, as well as public scrutiny, 
must be ensured.

For more information, see United Kingdom, College of Policing (2016). 

Figure 8 illustrates the different elements that can be used in lawful profiling; how 
they are combined will depend on the nature of the specific case.

Figure 8 illustrates the different elements that can be used in lawful proﬁling; 
how they are combined will depend on the nature of the speciﬁc case. 

Figure 8:  Combination of elements

Intelligence

Behaviour
and other
objective facts

Characteristics
based on
protected
grounds*

Adequate
protection of
personal data

Lawful
proﬁling

* 

See Figure 9 for the list of protected grounds under EU law. Profiling should never be 
based solely or mostly on protected characteristics.

Source:  FRA, 2018

73

Figure 9 shows how these elements can be combined to ensure that profiling is not 
discriminatory.

Figure 9: Elements of non-discriminatory proﬁling

Figure 9:  Elements of non-discriminatory profiling

1

Proﬁling
must not be based
solely or mainly on
protected grounds. 

2

However,
protected
grounds
can be relevant and
legitimate information
when based on
reasonable grounds. 

3

Finally, in speciﬁc
cases, differential
treatment may be
considered legitimate
- if properly justiﬁed. 

These include:

sex
race
colour
ethnic or social origin
genetic features
language
religion or belief
political or any other opinion
membership of a national minority
property
birth
disability
age
sexual orientation

Reasonable grounds will be considered sufﬁcient
when the suspicion is: 

based on a combination of data
not solely or mainly based on one or several of
the protected grounds above
timely and reliable 
e.g. based on information matching the description
of a suspect, or based on suspicious unexpected behaviour 
that would not correspond to the information contained
in the travel or identity document 
speciﬁc
each person must be treated as an individual,
and not as a member of a group
not based on prejudices
beware of artiﬁcial categories, created through established 
correlations between behaviour and protected grounds

To be justiﬁed, differential treatment must pass the
"necessity and proportionality test":

The difference is prescribed by law
The difference pursues a legitimate aim
The action taken is necessary in a democratic society
The action taken is proportionate to achieving that aim

Notes: 

The list of protected grounds varies across Member States. For an overview of the 
grounds of discrimination that are included in the criminal codes of each and every 
Member State, see FRA (2018d). See also the website of Equinet, the European 
Network of Equality Bodies, which lists the grounds of discrimination covered by 
national equality bodies.

Source:  FRA, 2018

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

2.2.5.  Stop and search forms for law enforcement 

profiling

Stop and search forms can help officers to reflect on whether the stops they are 
conducting are based on reasonable grounds, and allows senior officers to moni-
tor potential discriminatory practices in individual officers’ use of stop and search. 
While sometimes considered burdensome, they also provide a record of stops 
which, when collated, provides data that can point to whether stops are being con-
ducted in a lawful way.34 This can help to promote openness and accountability. In 
addition to the completion of paper forms, new technologies such as mobile apps 
can be used to record this information.

Some important points to incorporate when designing stop and search forms are 
described in the focus box.

Focus on what makes a good stop and search form 

Stop and search forms need to be well designed to be useful. Firstly, completing 
the forms creates additional workload for officers. If not clearly designed and 
reasonably short, the risk is that officers may not complete the entire form, or will 
fill it out in a cursory way. Secondly, good forms allow data to be easily extracted 
and collated to support the monitoring and evaluation of stop and search actions.

Whenever possible, stop and search forms should:

•  Use multiple-choice fields which are quicker to fill in and easier to process 

statistically.

•  Set out an exhaustive list of options for each item.

•  Avoid ambiguous items.

•  Be easily understandable, for both the officer and the person stopped.

•  Include:

|| the legal grounds for the search. Simple explanations rather than a list of 

rules are preferable;

|| the date, time and place where the person or vehicle was searched;

34  United Kingdom, Stop Watch (2011).

75

|| the object of the search e.g. item(s) officers are looking for;

|| the outcome of the stop;

|| the name and police station of the officer(s) conducting the search;

|| the personal details of the individual(s) searched, such as name, address, 
and nationality, may be recorded. However, the individual can refuse to 
provide this information.

To be effective, forms should be completed at the time the stop is conducted.

A copy should be given to the person stopped or the person in charge of the 
vehicle searched. In the United Kingdom, individuals who have been stopped 
are entitled to request a copy of the record within three months of the stop. In 
this way, the form does not only support evidence of the stop for the police, by 
also for the individuals stopped.

For more information, see United Kingdom, West Midlands Police (2012), p.7; 
and United Kingdom, Home Office (2014a).

Case study 

Stop and search form (UK) 

The stop and search form used by West Midlands Police in the United 
Kingdom is replicated below.

It shows that the person stopped is asked to self-identify as belonging to 
one of the listed categories of ethnicity, including options of ‘other’ or ‘not 
stated’. The officer conducting the stop can add their perception if they 
disagree with the self-identification.

The Code of practice for the exercise of stop and search powers in the UK 
states that officers should explain to those stopped that information on 
ethnicity “is required to obtain a true picture of stop and search activity 
and to help improve ethnic monitoring, tackle discriminatory practice, and 
promote effective use of the powers”.

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

For more information, see United Kingdom, West Midlands Police (2017a); 
and United Kingdom, Home Office (2014a), p. 19.

Many forces are now moving away from collecting stop and search data on forms, 
and instead use technologies such as mobile phone apps, radio-based systems, 
mobile data terminals or laptops. These technologies can speed up the recording 
process and reduce bureaucracy, but also create new risks, notably in relation to the 
algorithmic use of personal data (see Chapter 3).

77

 
 
 
 
Case study 

Live recording of stop and search actions 

“eSearch” (West Midlands Police, United Kingdom)

Adopted in April 2014, this system is based on a call between the officer on 
the ground and a member of staff in the Contact Centre (control room). The 
details of the stop and search are recorded immediately in the Contact Centre 
and included in a database. This information can then be accessed and used 
to scrutinise the effectiveness of stop and search actions, both internally and 
externally. eSearch has transformed the recording of stop and search actions. 
Records can be viewed far more quickly on police systems, with benefits for 
intelligence and integration into operational policing.

For more information, see United Kingdom, West Midlands Police (2014) and 
United Kingdom West Midlands Police (2016).

Mobile app for frontline officers (West Midlands Police, United Kingdom)

A new mobile app launched in October 2017 aims to make stop and search 
quicker and more efficient. The eSearch app allows officers to record details 
of street encounters directly into the app via their smart phones, without 
the need to call contact centre staff. Each stop is given a unique reference 
number, and GPS automatically records its location. The app is expected to 
reduce calls to the contact centre by almost 1 000 calls a month.

For more information, see United Kingdom, West Midlands Police (2017b). 

Senior officers play an important role in ensuring that stop and search operations are 
lawful. The example below shows how senior officers can maintain oversight. They 
should also ensure that stop and search actions is not used as a performance meas-
ure based on the number of stops conducted.

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Case study 

Signing off stop and search records (UK)

Since August 2014, every stop and search record in the United Kingdom 
must be signed off by the supervisor of the officer who conducted the 
search. Records are endorsed as either meeting or not meeting the relevant 
standards. In the latter case, the reporting officer must record why on the 
stop and search record.

For more information, see United Kingdom, Home Office (2014a). 

2.3.  Accountability

Key points

 

 

 

 

Law enforcement and border management officials are accountable for keeping 
profiling within the law.

Collecting reliable, accurate and timely data on profiling activities is crucial for 
ensuring accountability.

Effective complaint mechanisms can both deter abuses of power and secure 
and restore public trust in the operations of police and border management 
authorities.

Feedback meetings with members of the public to listen to their opinions, dis-
cuss profiling, and gather feedback on operations, provide opportunities to learn 
important lessons and improve profiling actions.

Accountability is a key principle of democratic governance. In very general terms, it 
involves the provision of answers to those who are entitled to demand an account.35 
Accountability focuses not only on individual decision-making, but on that of the 
institution (so-called ‘institutional accountability’). As public officials and bodies, law 
enforcement and border management officers, as well as their organisations, are 
accountable to the public for their decisions and actions. This includes being account-
able for ensuring that profiling is within the law.

35  Bovens, M., Schillermans, T. and Goodlin, R.E. (2014), pp. 1–11.

79

Collecting reliable, accurate and timely data is crucial for ensuring accountability. As 
much of the data contain sensitive personal information, they must be handled in 
accordance with data protection rules and procedures (see Chapter 3).

Accountability Checklist 

The checklist below provides a basic overview of steps that law enforcement 
and border management authorities may take to ensure that they are 
accountable for decisions and actions concerning profiling. This list can guide 
officers towards improving their accountability, but should not be understood 
as mandatory steps for both law enforcement and border management 
officers. Depending on the context, some recommendations may not apply 
to the specificities of border management.

1. Identify

  Recognise and acknowledge the problem of unlawful profiling. Bias and 
stereotypes do exist and pose risks for those involved, including officers 
and local communities.

  Collect and make use of disaggregated data: it is an important tool to 

assess effectiveness and performance.

  Participate in external panels organised by the community or civil society 
to get feedback on your practices and enhance trust in your operations.

2. Collect information

  Guarantee accountability by keeping records of profiling activities.

  Subject to the necessary safeguards, video surveillance and/or body 
worn cameras can enhance accountability, and provide evidence to 
support action to modify patterns of biased behaviour.

  Create stop and search forms to be completed by police officers after 

every stop.

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Preventing unlawful profiling today and in the future: a guideAbbreviations and acronyms 

3. Act and Prevent

  Conduct assessments to find out if there are any rules and practices that 

perpetuate explicit or implicit bias and negative stereotypes.

  Introduce specific courses and/or training sessions focusing on addressing 

personal and institutional bias and stereotypes.

  Provide information to individuals who are stopped to increase the 
perception of a fair stop, and give individuals sufficient information to 
decide whether or not to seek remedy. For referrals to second line checks 
at border crossing points, the provision of information is a legal obligation.

  Show zero tolerance within the organisation for bias-based incidents.

  Establish internal mechanisms for supervision and control, such as 
internal panels for discussing whether stops are made on the basis of 
reasonable grounds.

  Make sure that performance indicators are linked to avoiding bias and 

stereotypes.

  Establish complaints mechanisms to deter abuses of power and ensure 

accountability.

Source: FRA, 2018 

2.3.1. 

Internal monitoring

The leadership and management of police and border management authorities play 
an important role in establishing an ethos that upholds individual rights and the prin-
ciple of non-discrimination, both within the organisation and in its dealings with the 
public. They also contribute to establishing a climate of accountability and transpar-
ency. Open communication between staff (both horizontal and vertical) and setting 
clear standards for behaviour, such as professional codes of conduct, are two of the 
internal elements that should be in place to enhance accountability. Recruitment and 
training also play important roles (see Section 2.2.3).

Under EU law any public authority or body has to designate a Data Protection 
Officer. He or she advises police and border management forces on their data pro-
tection obligations, including keeping records of data-processing activities or car-
rying out data protection impact assessments. In the context of profiling, the Data 

81

Protection Officer will, for example, advise on and oversee that personal data col-
lected for, or during, profiling are lawfully processed and stored.

Focus on the role of Data Protection Officers 

The Police Directive requires Member States to appoint a data protection 
officer whose tasks include:

•  monitoring compliance with applicable legislation concerning the protection 

of personal data, including:

|| assigning responsibilities;

|| awareness-raising and training of staff;

|| audits;

•  providing advice on the data protection impact assessment and monitoring 

its implementation;

•  acting as a contact point for the supervisory authority.

The data protection officer should be involved fully and in a timely manner 
in all issues related to the protection of personal data.

See Articles 32-34 of the Police Directive. 

Within police forces, internal monitoring of profiling can be carried out as part of 
a wide range of other measures aimed at keeping records of encounters between 
authorities and the general population (see Figure 10). These include the use of:

• 

stop and search forms: that are a useful practical tool for encouraging officers to 
carry out well-grounded stops, and promoting openness and accountability with 
the public (see Section 2.2.5);

•  body-worn cameras: subject to the necessary safeguards, they can enhance 
trust between communities and the police, and may act as a deterrent for the 
misuse of force and discrimination (see Section 2.3.2).

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Figure 10: Elements of internal monitoring
Figure 10:  Elements of internal monitoring

Body-worn
cameras

Appropriate
    human rights      
      knowledge for
         ofﬁcers in
            charge of
              monitoring

Stop and search
forms

INTERNAL
MONITORING

Data
Protection
Ofﬁcer

Effective
complaint
mechanisms

                                    Monitoring 
                                      standards
                       should be clearly
           established and made  
               available to ofﬁcers

Timely,
  clear and open
   post-proﬁling
     discussion between
        staff and supervisors

Speciﬁc to Law
Enforcement

Apply to both Law
Enforcement  and Border
Management

Source:  FRA, 2018

Internal monitoring activities in border management organisations can also make 
use of these measures. For example, the Schengen Catalogue recommends record-
ing the number of and reasons for referral to second line checks. In addition, the 
different contexts of border controls, the infrastructure at border crossing points and 
the on-site presence of superiors create other opportunities for internal monitoring. 
For instance, additional technological equipment such as video surveillance may be 
available.

With the necessary safeguards in place, video footage may provide evidence for 
assessing how profiling is conducted, and provide evidence in the case of specific 
complaints. For example, it could confirm whether a person’s behaviour while wait-
ing for the first line check gave sufficient reason for referring them to a second line 
check.

Unlike in stop and search actions, the presence of video surveillance is largely 
expected by passengers at border crossing points due to their public nature and 
security considerations. Nevertheless, the use of such tools must comply with the 
right to privacy and applicable data protection rules.

83

Keeping records can have both short and long-term benefits. The example of stop 
and search forms shows how:

• 

• 

In the short-term, stop and search forms can provide on-the-spot accountability. 
In the United Kingdom, everyone stopped is given a record of the stop form or 
a receipt identifying where they can access a copy. It provides the details of the 
reason for the stop as well as information on where and how to complain. This 
allows the person to see the reason and to challenge it if they consider it unfair.

In the long-term, analysis of records allows the police force to identify whether 
stop and search powers disproportionately target members of minority groups, 
and to adjust guidance given to officers accordingly. These records can be made 
public to enhance transparency and promote public confidence in the use of stop 
and search powers.

Keeping records: What does the law say?

To ensure the lawfulness of data processing, the Police Directive requires 
that law enforcement authorities keep a record of all categories of processing 
activities under their responsibility. Moreover, in automated processing 
systems, they have to keep logs with a view to knowing who consulted or 
disclosed personal data, when it happened, who received the data, and the 
justification behind data processing (see Section 3.1.3).

Articles 24 and 25 of the Police Directive

Case study

Using records to detect disproportionality in stop and search actions (UK)

The Police and Criminal Evidence Act Code of Practice developed in England 
and Wales (United Kingdom) places a statutory duty on police forces to 
monitor the use of stop and search powers to detect whether they are 
being “exercised on the basis of stereotyped images or inappropriate 
generalisations”. Any apparently disproportionate use of the powers by 
particular officers or groups of officers or in relation to specific sections 
of the community should be identified and investigated, and appropriate 
action taken to address it. In addition, police must make arrangements for 

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

the records to be scrutinised by representatives of the community, and to 
explain the use of stop and search powers at a local level.

For more information, see United Kingdom, Home Office (2014a).

Police in the United Kingdom have developed several tools to increase transparency 
by making stop and search data easily accessible. The website www.police.uk allows 
users to enter their postcode to see detailed information about the number and 
nature of stops in their local area. The information published draws on completed 
stop and search forms. In addition, the Metropolitan Police’s stop and search dash-
board provides data on all stop and searches in London, including on the proportion 
of people with ethnic minority backgrounds stopped relative to the overall popula-
tion. Users can access detailed data online in different ways, such as:

•  a map showing, on a monthly basis, the exact location of the stop and searches 
conducted in a particular area. The tool also provides detailed information on the 
stop and search (object, type, outcome, whether the stop and search was part of 
a policing operation), on the person (gender, age range, self-defined ethnicity, 
officer-defined ethnicity), and the legislation supporting the lawfulness of the 
stop and search (see Figure 11); and

•  an overview of statistics and charts presenting the stop and search actions of 

the police. This allows the information to be aggregated and downloaded.

Although this practice fosters transparency and trust, it could impact the rights to pri-
vacy and data protection of the individuals concerned. It is possible that the identity 
of an individual could be inferred from the combination of data available in this or 
other online tools. Such risks need to be assessed and, where relevant, addressed.

2.3.2.  Body-worn cameras

Police forces are increasingly using body-worn cameras. They can play a role in 
ensuring accountability, improving the quality of individual encounters, and modify-
ing patterns of biased behaviour. They may also help to de-escalate dangerous situ-
ations. As well as footage collected by police, members of the public are increasingly 
filming stops and other interaction with the police. This can also be used to review 
police practice.

85

Figure 11:  Online tool showing details of stop and search actions conducted 

in London

Source:  United Kingdom, Home Office, webpage on stop and search map

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Source:  United Kingdom, Home Office, webpage on specific search

Case study

The effectiveness of body-worn cameras

In the United Kingdom, a study conducted in 2015 on the use of 500 cameras 
by 814 officers from the Metropolitan Police showed “no overall impact 
on the number or type of stop and searches conducted; no effect on the 
proportion of arrests for violent crime; and no evidence that the cameras 
changed the way officers dealt with either victims or suspects”. Reports 
assessing the impact of similar trials by other police forces show little or no 
evidence that these had any positive effect in reducing crime, complaints 
towards officers, or the use of force.

For more information, see Big Brother Watch (2017).

In France, body-worn cameras were deployed in 300 localities for a two-year 
pilot period. In June 2018, a review by the Ministry of Interior highlighted the 
positive impacts and results of the trial. Notably, the report emphasised the 

87

deterrent effect of the wearing of body-worn cameras on stopped individuals 
from abusing or insulting the police. Reports from municipalities indicated 
that the use of individual cameras reduced aggressiveness and insulting 
behaviour towards police officers. Some municipalities pointed out that the 
use of body-worn cameras seemed to have de-escalated situations that could 
otherwise have resulted in an offense against police officers. While these 
reports suggest that the usefulness of body-worn cameras lies particularly in 
the dissuasive impact of wearing them, some footage was used as evidence in 
court proceedings to identify offenders. Finally, several municipalities stressed 
the educational usefulness of the device, as some police officers were trained 
on intervention procedures and techniques by viewing the recordings made 
during interventions. Following the pilot, a draft law has been presented to the 
French Parliament with the aim of harmonising the use of body-worn cameras 
across all police forces and to extend their use to firefighters and prison officers. 

For more information, see France, Ministry of Interior (2018).

A large 12-month trial of body-worn cameras in 2012-2013 in Rialto in the 
United States looked at whether body-worn cameras would lead to socially-
desirable behaviour among the officers wearing them. The results show that, in 
comparison to 2011, during the 12-month trial period the use-of-force dropped 
from 60 to 25 instances, and complaints against the police fell from 28 to 3.

For more information, see Farrar, T. (2018). 

However, the use of body-worn cameras by police raises some important funda-
mental rights and operational concerns. Clear safeguards and policies concerning 
their use are necessary to address these issues:

•  The role of body-worn cameras in detecting and deterring unlawful profiling 
is unclear. Cameras capture individual incidents and do not allow for the collec-
tion of statistical data that could be used to determine whether stop and search 
operations are discriminatory. Rather, they can be used to review and discuss 
individual encounters, helping to improve their quality.

•  The use of body-worn cameras could have negative impacts on relations with 
minority communities, if they feel they are being specifically targeted. Devel-
oping safeguards and policies in consultation with local communities can help 
to promote body-worn cameras as a tool to improve accountability rather than 
a means to stigmatise minority groups.

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

•  Using body-worn cameras has consequences for the rights to privacy and data 
protection, as well as other fundamental human rights. For example they could 
affect the freedom of peaceful assembly if used to monitor public demonstra-
tions, for example. It is often unclear when cameras should be switched on and 
off, and what happens if an officer forgets or decides not to switch on the cam-
era: clear guidance is needed in this area. Private companies providing this ser-
vice must be clear that they cannot process the footage for their own purposes. 
The use of body-worn cameras should be regulated by law to ensure that it is in 
line with fundamental rights.

Focus on using body-worn cameras effectively

Complying with three important principles can help to ensure body-worn 
cameras are used effectively:

•  Authenticity: images must be clearly tied to the incident. The date and 
time (e.g. through timestamping) and exact location (e.g. via GPS) of the 
incident should be recorded.

•  Reliability: images should be uploaded in the central system in a rigorous, 
safe and confidential way. These images should comply with the principles 
of data protection and respect for private life, and therefore should not be 
kept for a longer period than specified by law.

•  Admissibility: to be useful in criminal proceedings, footage must be 

admissible in courts. This can involve:

|| Avoiding continuous video recording, which constitutes unacceptable 
interference with the right to privacy of both police officers and the 
individuals filmed.

|| Informing those who may be filmed, and obtaining their consent (when 

necessary).

|| Storing images with an adequate level of security, and keeping track of 

access to images by both police officers and citizens.

For more information, see Coudert et al. (2015), p. 8.

89

Further technological developments will require the development of new safe-
guards to ensure body-worn cameras are used lawfully. For example, cameras that 
can automatically recognise a person’s face by comparing and matching it with pre-
vious entries in an existing database pose new challenges to the rights to privacy 
and data protection.

Case study

Police Body-Worn Cameras: A Policy Scorecard (US)

To increase the transparency and accountability of body-worn cameras, the 
Leadership Conference on Civil and Human Rights & Upturn in the United 
States developed a tool to assess and structure the information that can be 
extracted from footage filmed by body-worn cameras.

The tool proposes eight criteria to assess such footage:

1.  Whether the footage is made public and readily available by the police 

department.

2.  Whether officers’ discretion on when to record is clearly disclosed.

3.  Whether privacy concerns are addressed.

4.  Whether officers must review the footage before drafting their initial 

written report.

5.  Whether unflagged footage should be deleted within a predefined period.

6.  Whether footage is protected against tampering and misuse.

7.  Whether footage is made available to individuals filing complaints.

8.  Whether the use of biometric technologies to identify individuals in the 

footage is limited or not.

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Such initiatives can help to reinforce accountability by setting standards and 
encouraging the implementation of mechanisms to assess whether footage 
is collected and used appropriately.

For more information, see the Leadership Conference on Civil and Human 
Rights & Upturn, website on the policy scorecard.

2.3.3.  Complaints mechanisms

Effective complaints mechanisms can both deter abuses of power and help secure 
and restore public trust in the operations of police and border management authori-
ties. They usually exist alongside formal legal channels that allow individuals to chal-
lenge the action or decision of a public authority before an independent and impar-
tial tribunal.

To be effective, it is essential that:

• 

Individuals can easily access complaint mechanisms: evidence consistently shows 
that people are reluctant to make complaints, for example because the process is 
long or expensive, or because they fear negative repercussions. Making complaints 
mechanisms easily accessible through the use of online platforms such as websites 
or apps may encourage people to use them. In addition, organisations can support 
individuals in bringing complaints, either by bringing complaints on their behalf or 
through collective redress mechanisms, as envisaged in Article 80 (2) of the GDPR.

•  Complaints are handled transparently: this will help increase confidence in com-

plaints mechanisms.

•  Complaints bodies are independent of the organisation, or the part of the 

organisation against which the complaint is brought.

There are a wide range of different mechanisms which handle different types of 
complaints. Figure 12 gives an overview of some of the complaints mechanisms 
available in EU Member States and at the EU level.

91

Figure 12: Overview of complaints mechanisms in EU Member States
Figure 12:  Overview of complaints mechanisms in EU Member States

INTERNAL COMPLAINTS
MECHANISMS

EXTERNAL COMPLAINTS
MECHANISMS

EUROPEAN COMPLAINTS
MECHANISMS

are led by police
ofﬁcers, border guards,
or civil servants

investigate allegations
of unfair treatment

may take disciplinary
action

European Ombudsman
accessible to EU citizens
and residents

instances of
maladministration by
EU institutions, bodies,
ofﬁces or agencies

Frontex Complaints 
Mechanism
monitor the respect
of fundamental rights
in the Agency’s
activities

General complaints 
mechanisms
specialised complaint 
bodies, such as the 
Ombudsman

impartial and independent 
of the police or border 
guards

assess complaints about
the activities of public 
bodies, including law 
enforcement agencies

Specialised
non-discrimination bodies
national Equality Bodies

responsible for handling 
complaints of discriminatory 
behaviours by public 
authorities

Specialised data protection 
authorities (DPAs)
have investigatory powers 
and a complaint mechanism in 
case of a breach of privacy 
and/or data protection rights

may process claims submitted 
by data subjects or data 
protection organisations
legally binding decisions

Source:  FRA, 2018

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

Mechanisms where police officers come together with members of the public to lis-
ten to their complaints, discuss profiling and gain feedback for their operations pro-
vide an opportunity to learn important lessons to improve the processes that regu-
late profiling. They also create a means for involving the public in law enforcement 
activities (see case study).

Case study

Public complaint mechanisms in the law enforcement sector

Public Scrutiny Panels (West Midlands Police – United Kingdom)

Each of the eight Policing Boroughs within West Midlands Police (WMP) holds 
a bi-monthly Stop and Search Scrutiny Panel meeting, which is chaired by 
members of the public. These panels assess stop and search records, ensure 
that WMP respects the law, and give communities a channel to communicate 
complaints and raise issues of concern. The agendas and minutes of the 
meetings are published online. WMP has adopted a number of additional 
practices relating to community involvement in an effort to make street 
stops fairer and more targeted, and officers more accountable.

For more information, see West Midlands Police, webpage on stop and search 
and Her Majesty’s Inspectorate of Constabulary (2016).

Reasonable Grounds Panels (Northamptonshire Police – United Kingdom)

Northamptonshire Police have put in place Reasonable Grounds Panels 
to  involve  members  of  the  public  in  improving  its  stop  and  search 
operations. These panels are a channel for discussion on the use of stop 
and search powers and their impact on communities. They are chaired by 
a chief inspector and composed of a frontline officer and two members 
of the community, who can include offenders or ex-offenders. As well as 
enhancing communication between the police and the public, the panel has 
the authority to strip powers from officers and refer them for additional 
training to improve their stop and search operations.

For more information, see the Northamptonshire Police’s webpage on the 
panel and Open Society Justice Initiative (2018a).

93

Informal network of police complaints mechanisms

The Independent Police Complaints Authorities’ Network (IPCAN) is an 
informal network for exchange and cooperation amongst independent 
structures in charge of external control of security forces. It was created in 
2013 and brings together complaints authorities from around 20 countries. 
These bodies, mainly from EU Member States, receive and process complaints 
against public security forces and, sometimes, against private ones.

For more information, see IPCAN’s website.

In border management, public complaint mechanisms may be implemented through 
on the spot or ex post possibilities to lodge a complaint. The possibility to access 
such mechanisms increases transparency and accountability, and fosters mutual 
respect and good relationships between border guards and the public. The option to 
lodge a complaint ex post to a superior body rather than (only) directly at the border 
crossing point creates a degree of oversight and may positively influence the will-
ingness of travellers to report possible incidents.36

Case study

Public complaint mechanisms in border management

Internal complaint mechanism at Manchester airport (United Kingdom)

At Manchester airport, the Central Allocation Hub provides a single point of 
contact for all passengers who wish to make a complaint. Complaints can be 
filed by email, letter, phone or fax, or face-to-face, and in English or Welsh. 
United Kingdom Border Force guidance outlines possible ways of resolving 
complaints. Minor misconduct such as rudeness, brusqueness or poor attitude 
can usually be resolved locally. Options include clarifying the issues with 
the customer, explaining operating procedures, agreeing further action and 
offering an apology if appropriate. Complaints about serious misconduct 
are usually assigned to the Professional Standards Unit. The Border Force 
guidance includes a test for determining signs of possible discrimination, 
which would constitute serious misconduct. If there is strong initial evidence 

36 

FRA (2014b).

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Preventing unlawful profiling today and in the future: a guideLawful profiling: principle and practice

that a passenger’s treatment can be explained by factors other than race, 
the case is usually referred for local resolution.

For more information, see FRA (2014a), p.74.

Frontex Individual Complaint Mechanism (EU)

Following the adoption of the new Regulation of the European Border and 
Coast Guard Agency (Frontex) in 2016, Frontex established an individual 
complaints mechanism to monitor the respect of fundamental rights in the 
Agency’s activities. These include pilot projects, return operations, joint 
operations, rapid border interventions, migration management support team 
deployments and return interventions. Any person whose rights have been 
directly affected by the actions of staff, including staff of national public 
authorities, involved in such Frontex activities can submit a complaint to the 
Frontex Fundamental Rights Officer. He or she decides on its admissibility 
and sends it to the Frontex Executive Director, as well as to the authorities 
of the affected Member State, if national staff were involved in the alleged 
violation. The complaint can be submitted in any language, by email, letter 
or via an online complaint form available on the Frontex website: http://
frontex.europa.eu/complaints/.

Focus on the rights of law enforcement officers

Police officers are entitled to the same rights and freedoms as other persons, 
and are protected by human rights standards when performing their jobs. They 
can refer to their rights as laid down in various international human rights 
documents, such as: the European Convention on Human Rights (ECHR) or the 
International Covenant on Civil and Political Rights (ICCPR). The European Code 
of Police Ethics clarifies that “[p]olice staff shall as a rule enjoy the same civil 
and political rights as other citizens. Restrictions to these rights may only be 
made when they are necessary for the exercise of the functions of the police 
in a democratic society, in accordance with the law, and in conformity with the 
European Convention on Human Rights.” One exception can be found in Article 11 
of the ECHR, which refers to the right to freedom of assembly and association.

When carrying out police functions, especially when applying police powers, 
a police officer is not acting as a private individual but as an organ of the state. 
The state’s obligation to respect and protect human rights therefore has a direct 

95

effect on the options a police officer has to respond to aggression. The rights of 
police officers, who might risk injury or death to fulfil their duties, must also be 
respected and protected, such as by providing protective equipment, carefully 
planning police operations or taking preventive measures. Restrictions to his/
her rights might be necessary for the exercise of police functions but any such 
limitations must reflect the principle of proportionality. Given their particular 
role as a state organ, police might face a greater limitation of their rights than 
an ‘ordinary citizen’. Taking the example of a demonstration turning violent, 
an ‘ordinary citizen’ might run away or seek help, whereas a police officer is 
obliged to protect the human rights of others and restore public order.

For more information, see FRA (2013).

96

Preventing unlawful profiling today and in the future: a guide3. 

3 

Algorithmic profiling

Algorithmic profiling includes any step-by-step computerised techniques that ana-
lyse data to identify trends, patterns or correlations.37 Through profiling, the individ-
ual is selected “based on connections with others identified by the algorithm, rather 
than actual behaviour” and “individuals’ choices are structured according to informa-
tion about the group”, rather than according to their own personal choices.38

Algorithmic profiling can be an efficient way for border management and law 
enforcement organisations to use data to prevent, detect and investigate crime. 
However, the collection and processing of large data sets raises a number of fun-
damental rights concerns. In addition to the importance of avoiding discrimination, 
algorithmic profiling introduces new risks, particularly in relation to rights to privacy 
and data protection. This section first concentrates on these new risks. It then illus-
trates the fundamental rights challenges associated with the use of algorithmic pro-
filing in large-scale databases for border management and security purposes, and 
suggests some ways to minimise these risks.

37 

For more information on what algorithms are, see FRA (2018b), p.4.

38  Mittelstadt, BD., Allo, P., Taddeo, M., Wachter, S. and Floridi, L. (2016).

97

Focus on predictive policing

Several software applications for predicting when and where a crime will 
be committed are used by law enforcement authorities. Some examples 
are: PredPol in the United Kingdom and the USA, the Criminality Awareness 
System (CAS) in the Netherlands, and Precobs in Germany and Switzerland. 
However, the effectiveness of these predictive methods for crime prevention 
has not yet been properly evaluated. Evidence so far shows contradictory 
findings, as the following examples show.

Predictive policing field test in Kent (UK) and Los Angeles (USA)

Police in the UK and US conducted an experiment to compare – against a more 
traditional approach – a fully automated algorithm for the identification of 
crime hotspots and the ensuing planning of police patrols.

Findings showed that the automated algorithm better identified future 
crimes. It predicted between 1.4 and 2.2 times more criminal actions than 
a crime analyst using traditional criminal intelligence and crime mapping 
practices. Moreover, patrolling actions based on the predictive tool are more 
effective, leading to an average reduction of 7.4 % in the number of crimes.

For more information, see Mohler, G.O., et al. (2016).

PILOT (Predictive Intelligence Led Operational Targeting) programme at 
Shreveport (USA)

This programme uses a predictive model to identify small areas at increased 
risk of property crimes and implement an intervention model in those areas 
to prevent property crimes. Results from three districts using PILOT were 
compared to three districts where traditional policing was conducted. There 
was no statistical evidence of a greater reduction in property crimes in the 
three PILOT districts examined.

For more information, see Hunt, P. et al (2014).

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Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

Beware software (USA)

‘Beware’ provides officers answering emergency calls with colour-coded 
scores (red, yellow, and green) indicating the threat level of the person or 
location involved. The software searches databases including arrest reports, 
property records, commercial databases, in-depth web searches, social media 
posts, and other publicly available databases.

The strengths and weaknesses of this system have not been evaluated. 
However, the lack of oversight of the decision-making process and the 
secretive nature of the algorithm, which is protected by trade secrets, have 
raised concerns about accountability. In addition, the potential inaccuracy of 
the data collected, and/or the information inferred from the analysis, may 
reduce the overall effectiveness of the tool.

For more information, see American Civil Liberties Union (2016).

Case study

Assessing impacts and risk of predictive policing – the ALGO-CARE 
assessment tool

The potential negative effects of the use of predictive policing must be taken 
into account to ensure a balanced and transparent overview of its impact on 
society. Analysis conducted by a group that included academics and police 
officers concluded that, as predictive policing is still in an experimental phase 
in the United Kingdom, detailed assessments of its impact on society and 
individuals are required. The research argues that there are some decisions 
which could have too great an impact on society and individuals for them to 
be influenced by an emerging technology; these cases should be removed 
from the influence of algorithmic decision-making.

The group developed a decision-making framework called ALGO-CARE for 
the deployment of algorithmic assessment tools in the policing context. This 
framework aims to guide police officers when assessing the potential risks 
of using predictive policing. It also attempts to translate key public law and 
human rights principles into practical considerations and guidance that can 
be addressed by public sector bodies.

99

The assessment tool invites police officers to assess the use of predictive 
policing through eight complementary steps:

•  Advisory: to assess the extent of human intervention.

•  Lawful: to assess the legal justification for using the algorithm.

•  Granularity: to assess whether the algorithm can enter into sufficient level 

of detail on the specific case.

•  Ownership: to ensure that the police force has the legal ownership and 
technical capacity to access, maintain, update and correct the source code 
on a regular basis.

•  Challengeable: to ensure that oversight and audit mechanisms are in place.

•  Accuracy: to assess whether the algorithm matches the policing aim, can 
be validated periodically and that the likelihood and impact of inaccuracy 
represents an acceptable risk.

•  Responsible: to assess the fairness, accountability and transparency of 

the algorithm.

•  Explainable: to assess the accessibility of information regarding both the 
decision-making rules and the impact that each factor has on the final 
outcome.

For more information, see Oswald, M., et al. (2017).

3.1.  The data protection framework 
governing algorithmic profiling

The development and increasing use of new technologies – including the growing 
use of large data sets to support decision-making – prompted the EU to extensively 
revise its rules governing the processing of personal data in 2016. The two new 
instruments, the General Data Protection Regulation (GDPR) and the Police Directive, 
set out important principles and standards covering any decision based on comput-
erised decision-making processes, including algorithmic profiling.

The GDPR and Police Directive entered into force in May 2018, meaning that there 
are few practical examples of implementation at the time of writing. Section 1.2.2 

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Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

describes the legal standards governing the rights to privacy and data protection, 
and explains some of the main differences between the GDPR and the Police Direc-
tive (see Table 2). This chapter builds on this information to describe and explain the 
legal requirements concerning algorithmic profiling introduced by the GDPR and the 
Police Directive. These include:

•  Data must be processed for a specific purpose based on a specific legal basis.

• 

Individuals must be informed when their personal data is processed.

•  Data must be kept safe.

•  Unlawful data processing must be detected and prevented.

Police officers and border guards requiring additional information on the legal 
requirements described in this chapter should turn to the data protection officers 
in their organisations. In addition, the Handbook on European Data Protection Law 
developed by FRA, the EDPS and the Council of Europe offers further guidance on 
the application of the Police Directive and the GDPR.39

Key points

 

 

 

 

 

Algorithmic profiling must be legitimate, necessary and proportionate.

Data shall not be processed without a specific purpose based on a specific legal 
basis.

Individuals have specific rights described in detail in the provisions of the GDPR 
and the Police Directive, including:

| the right to be informed, including to receive meaningful information on the 

logic involved in the algorithm,

| the right to access their personal data,

| the right to lodge a complaint with a supervisory authority, and

| the right to an effective judicial remedy.

Data should be safely collected, processed and stored.

Unlawful data processing must be prevented and detected.

39 

FRA, EDPS and Council of Europe (2018).

101

3.1.1.  Data must be processed for a specific purpose

Any processing of personal data must have a legal basis. This means that it must be 
conducted to achieve a specific purpose set up in law.

Before any processing happens, an officer must know its purpose. This could include, 
among others:

• 

Is the data processed to detect a criminal offence?

• 

Is it processed to maintain public security?

• 

Is it processed to counter terrorism?

Once the purpose is correctly identified, officers will know which legal framework 
applies and the relevant legal obligations. Table 4 sets out how to identify which 
legal framework applies.

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Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

Table 4: 

Identifying the correct legal framework depending on the purpose of 
processing

1. What is the purpose of data processing?

•  prevention, investigation, detection 
or prosecution of criminal offences;

•  any other purpose

•  execution of criminal penalties;
•  safeguarding public security.

2. Police Directive applies

2. General Data Protection Regulation 
applies

3. Union or national law defines*

3. Processing is only allowed when it 
is either:

•  what personal data can be 

•  consented to by the personal data 

processed;

subject;

•  the specific purposes of the data 

•  necessary for the performance of 

processing.

a contract;

•  necessary to comply with legal 

obligations;

•  necessary to protect the vital interests of 

a person; or

•  necessary for the public interest.

103

4. Is the purpose of profiling 
exempt from the Police Directive?

4. Is the purpose of profiling exempt 
from the GDPR?

The rights to be informed, to access 
personal data, and to request the 
modification or erasure of the data 
may be limited (wholly or partially) in 
the following cases:
•  to avoid obstructing official or 

legal inquiries, investigations or 
procedures;

The obligations (to be transparent, to 
inform and to notify breaches) and rights 
(to access, rectify, erase, object or not to 
be subject to automated decision-making) 
set out in the GDPR may be restricted by 
national or EU law to safeguard:
•  national security, defence or public 

security;

•  to avoid prejudicing the prevention, 

•  the prevention, investigation, detection 

detection, investigation or 
prosecution of criminal offences or 
the execution of criminal penalties;

•  to protect public security;
•  to protect national security;
•  to protect the rights and freedoms 

of others.

or prosecution of criminal offences or the 
execution of criminal penalties, including 
the safeguarding against and the 
prevention of threats to public security;

•  other important objectives of general 

public interest of the Union or of 
a Member State, in particular an 
important economic or financial interest 
of the Union or of a Member State, 
including monetary, budgetary and 
taxation a matters, public health and 
social security;

•  the protection of judicial independence 

and judicial proceedings;

•  the prevention, investigation, detection 

and prosecution of breaches of ethics for 
regulated professions;

•  a monitoring, inspection or regulatory 
function connected, even occasionally, 
to the exercise of official authority in the 
specific cases;

•  the protection of the data subject or the 

rights and freedoms of others;

•  the enforcement of civil law claims.

Note: *National acts transposing the Police Directive are available on Eur-Lex’s website.

Source: FRA, 2018

3.1.2. 

Individuals must be informed

Article 13 of the Police Directive and Articles 13 and 14 of the GDPR require that indi-
viduals be informed when their personal data are processed. Table 5 describes how 
and when to communicate information to the person whose data are being processed.

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Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

Table 5:  Obligation to provide individuals with profiling information: type of 

data, means of communication and exceptions

Notification obligation - Checklist

To whom?

Person whose data are processed

•  clear and plain language
•  easily accessible form
•  in the same form as the request – prefer electronic means

About the processing:
•  your authority’s name and contact details
•  your data protection officer’s contact details
•  the purposes of the processing
•  the legal basis of the processing
•  the maximum period for storing the data
•  the types of persons/organisations that will receive the data

About the individuals’ rights:
•  the right to lodge a complaint with a supervisory authority and 

the contact details of the supervisory authority
•  the right to request access to his/her personal data
•  rectification and/or erasure of personal data
•  the right to request the restriction of the processing

•  For excessive (i.e. repetitive) or manifestly unfounded requests
•  When the identity of the requester cannot be clearly confirmed
•  When communicating information would obstruct investigations
•  When communication of information would prejudice 

prevention/investigation of criminal offences

•  To protect public or national security
•  To protect the rights of other individuals

How?

What?

Exceptions

Source:  FRA, 2018

105

Focus on the ‘right to explanation’

In cases of profiling, the GDPR requires that “meaningful information about the 
logic involved, as well as the significance and the envisaged consequences” 
of the data processing be provided to the individual. This should be provided 
both when the data is collected (notification), and if the individual requests 
further information (right of access). This right is not explicitly mentioned in 
the Police Directive. However, recital 38 specifies that “[automated processing] 
should be subject to suitable safeguards, including the provision of specific 
information to the data subject […] in particular […] to obtain an explanation 
of the decision reached after such assessment or to challenge the decision”.

This ‘right to explanation’ may prove difficult to implement in practice. 
Some individuals may have the digital literacy to understand the code of 
an algorithm, while for others, simplified information on the purpose of the 
processing and the interconnections of the data used is sufficient. The key to 
assessing the meaningfulness of the explanation provided is its objective. An 
individual should receive sufficient information to understand the purpose, 
the rationale and the criteria that led to a decision being made.

The right to an explanation is not absolute (see step 4 of Table 4). Member 
States may restrict this right by law in several cases, including: national 
security; defence; public security; the prevention, investigation, detection 
or prosecution of criminal offences; the execution of criminal penalties; the 
protection of the data subject or the rights and freedoms of others; or the 
enforcement of civil law claims.

Providing  reasonable  information  on  the  purpose  and  envisaged 
consequences of the processing is nonetheless an advisable good practice. 
Developing simple ways to explain the logic involved and the criteria used 
to reach a decision will ultimately enhance transparency and accountability.

For more information, see GDPR, Articles 13 to 15 (right to information and 
right of access), Article 22 (automated individual decision-making, including 
profiling), and Article 23 (restrictions); and the Police Directive, Article 11 
(automated individual decision-making, including profiling), and Articles 13 
to 15 (right to information and right of access).

See also Article 29 Data Protection Working Party (2018a).

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Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

3.1.3.  Keep the data safe: records, logs and storage 

rules

Authorities collecting and processing personal data for profiling purposes must not 
only process data lawfully, but ensure that data are not:

•  accessed by unauthorised persons,

•  used for other purposes than the original purpose, or

• 

stored for longer than necessary.

To this end, authorities and law enforcement boarder management officers must 
ensure that appropriate measures are implemented to protect the integrity and 
security of the data. They must keep track of any access to, and use of, the data by 
creating and maintaining records of all processing activities or categories of process-
ing activities (Article 30 of the GDPR and Article 24 of the Police Directive). Records 
must contain:

• 

the name and contact details of the authorities and data protection officer;

• 

the purpose of the processing;

• 

the categories of recipients to whom the personal data have been or will be 
disclosed;

•  a description of the categories of data subjects and of the categories of personal 

data;

• 

the use of profiling;

•  an indication of the legal basis for the processing operation;

•  where possible, the envisaged time limits for erasure of the different categories 

of personal data;

•  where possible, a general description of the technical and organisational security 
measures referred to in Article 32 (1) of the GDPR or Article 29(1) of the Police 
Directive.

107

In addition, when computer-based profiling is implemented for purposes covered by 
the Police Directive (see Section 3.2), authorities must keep logs of the: collection, 
alteration, consultation, disclosure, including transfers, combination and erasure of 
data.

These records and logs will support officers in demonstrating their compliance with 
legal requirements during internal and external monitoring. If an individual makes 
a complaint, for instance, law enforcement and border management authorities 
will be required to make the records and logs available to national data protection 
authorities.

Personal data should not be stored for longer than necessary to achieve the estab-
lished legitimate purpose. Storage for longer periods must be properly justified. In 
such cases, authorities should ensure that the storage is regularly reviewed to guar-
antee its integrity and security.

3.1.4.  Unlawful processing must be detected and 

prevented

Detecting and preventing unlawful processing of personal data is challenging. The 
specialist skills necessary to understand complex algorithms and large databases 
make it difficult to ensure proper checks.

To address this, the GDPR and Police Directive include safeguards to guide law 
enforcement and border management officers before, during and after the process-
ing of data. These refer to:

•  data protection impact assessments, and

•  data protection by design and by default.

Impact assessments

The EU legal framework requires police and border management authorities to con-
duct impact assessments before conducting any data processing that is likely to 
result in a high risk to individuals’ rights (Article 35 of the GDPR and Article 27 of the 
Police Directive). This means that impact assessments shall be conducted not only 
when the result of the processing may violate data protection or privacy standards, 

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Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

but in any situation that may result in a violation of any fundamental right. This can 
include the rights to: equality and non-discrimination; freedom of expression and 
information; freedom of thought, conscience and religion; education; healthcare; 
asylum; and protection in the event of removal, expulsion or extradition. Impact 
assessments are particularly important where profiling may result in legal conse-
quences for individuals. In such cases, the GDPR and the Police Directive require that 
impact assessments are conducted.

Impact assessments must be conducted prior to the automated processing itself. 
The objectives of these impact assessments are, however, twofold:

•  a priori: before processing the data, conducting an impact assessment on the 
quality of the data and/or the algorithm behind the processing will help detect 
and, where relevant, remedy potential fundamental rights violations.

•  a posteriori: once the data are processed, the officer may be required to demon-
strate that he/she acted lawfully. The impact assessment may support him/her 
in proving that all necessary measures to ensure compliance with the law were 
implemented.

Impact assessments will also support officers in detecting hidden biases that may 
violate the rights to data protection and non-discrimination, and have an impact on 
the quality of the profiling (see Section 1.3.2).

Focus on the risks of the use of ‘dynamic algorithms’

‘Dynamic algorithms’ are algorithms that are constantly redefined and 
‘improved’ based on ‘feedback loops’. These loops are created by the 
algorithmic systems themselves and cannot be properly understood or even 
expressed in simple language (see Article 35 of the GDPR and Article 27 
of the Police Directive). Unlike ‘static algorithms’, which are based on pre-
determined criteria, ‘dynamic algorithms’ generate new correlations by 
constantly redefining themselves.

Dynamic algorithms create the risk that expert programmers will, at 
some point, no longer know the logic behind the algorithm. This creates 
a significant risk of involuntarily reproducing existing prejudices and of 
perpetuating social inequalities and the stigmatisation of certain groups. In 

109

such cases, it becomes very difficult to ensure accountability and redress 
for the individuals concerned.

The use of ‘dynamic algorithms’ should therefore be avoided or reduced 
to minimise the risk of losing track of the assessment criteria. This enables 
internal and external auditors to evaluate the algorithms, and modify them 
if they are found to be unlawful. If the use of dynamic algorithms is justified, 
risk indicators shall be reviewed and tested to ensure that they do not result 
in unlawful profiling.

For more information, see Gandy, O. (2010) and Korff, D. (2015).

An impact assessment may vary significantly depending on the type and volume of 
personal data processed, and the type and purpose of the processing. It may include 
checking the quality of the data, technical controls of the algorithm(s) processing the 
data, and/or a complete review of the objectives of the processing, etc. Figure 13 sets 
out the minimum criteria that should be assessed.

The Article 29 Data Protection Working Party (now replaced by the European Data 
Protection Board), which brings together national data protection authorities in EU 
Member States, developed guidelines providing further information on data protection 
impact assessments. The guidelines include a detailed mapping of the criteria to use 
when conducting impact assessments.40

Embedding lawfulness ‘by design’ and ‘by default’

Irrespective of whether or not an impact assessment detected the possibility for 
a fundamental rights violation, measures can be implemented to further prevent 
any risk of unlawfulness. These are referred to as ‘Data protection by design’ and 
‘Data protection by default’ (Article 25 of the GDPR and Article 20 of the Police 
Directive).

Data protection by design aims to ensure that, both before and during the process-
ing of data, technical and organisational measures are implemented to guarantee 
data protection principles. For instance, where feasible, personal data could be 
‘pseudonymised’. Pseudonymisation is a measure by which personal data cannot 
be linked to an individual without additional information, which is kept separately. 

40  Article 29 Working Party (2017a).

110

Preventing unlawful profiling today and in the future: a guideFigure 13: Minimum requirements of impact assessments

Figure 13:  Minimum requirements of impact assessments

1

2

3

Algorithmic profiling

4

Description
of the proﬁling
processing

 Necessity and
proportionality 

Risks

Remedy

What is the
purpose of this 
proﬁling?
What are the 
envisaged
processing
operations?
What is the 
legitimate interest
to conduct such 
proﬁling?

In relation to the 
purpose established 
under 1, is such 
proﬁling necessary 
and proportionate? 
Is such proﬁling
the least intrusive 
technique to
realise the purpose 
effectively?

What fundamental 
rights may be 
impacted by this 
proﬁling? 
What is the scale 
of the impact on 
individuals? 

What measures 
were taken to 
prevent, and/or 
remedy such 
risks? These may 
include 
safeguards, IT 
security measures, 
etc.
Would these 
measures be 
sufﬁcient to 
demostrate 
compliance with 
the law? 

Source:  FRA, 2018

The ‘key’ that enables re-identification of the individual must be kept separate and 
secure.41 Contrary to anonymised data, pseudonymised data are still personal data, 
and therefore must respect data protection rules and principles.

Data protection by default ensures that “only personal data which are necessary for 
each specific purpose of the processing are processed”.42 This has an impact on:

• 

the amount of personal data collected and stored;

• 

the types of processing that may involve personal data;

• 

the maximum storage period;

• 

the number of persons authorised to access such personal data.

41 

FRA, EDPS and Council of Europe (2018), p. 83.

42  General Data Protection Regulation (GDPR), Art. 25.

111

Focus on accountability

The primary objective of data protection by design and the data protection 
by default is to support law enforcement and border management authorities 
and officers to design algorithmic profiling programmes that comply with 
fundamental rights requirements, in particular the principles of lawfulness, 
transparency and security.

However, such measures may also demonstrate how authorities comply with 
the legal requirement of accountability. Authorities processing data are legally 
expected to implement “appropriate technical and organisational measures” to 
demonstrate their compliance with EU law. For example, if an individual makes 
a complaint, authorities may be requested by national judicial and data protection 
authorities to demonstrate each of these points:

•  The legitimacy, necessity and proportionality of the computer-based 

profiling.

•  The lawfulness of the purpose.

•  The information provided to individuals.

•  The integrity and security of the data.

•  The quality measures and controls performed before and during the 

profiling operations.

3.2.  Large-scale databases for border 

management and security purposes

The EU has developed several large-scale IT systems or mechanisms for the collec-
tion and processing of data that can be used for border and migration management 
and, to some extent, for law enforcement purposes. They serve as examples to illus-
trate some of the common challenges linked to the use of algorithmic profiling, as 
well as possible safeguards.

Table 6 briefly presents these EU IT-systems and mechanisms. The Annex gives 
a detailed overview of existing and planned EU large-scale IT systems, as of 
March 2018.

112

Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

Table 6: 

Selected EU instruments involving the processing of large amounts of 
data for border management and law enforcement

Database

Acronym

Main Purpose

Schengen 
Information 
System

SIS II

Enter and process alerts on wanted or missing 
persons for the purpose of safeguarding security, 
enter and process alerts on third county nationals 
(TCNs) for the purpose of refusing entry or stay, 
and enter and process alerts on TCNs subject to 
a return decision.

Visa Information 
System

VIS

Facilitate the exchange of data between Schengen 
Member States on visa applications.

Determine the Member State responsible for 
examining an application for international 
protection and assist with the control of irregular 
immigration & secondary movements.

Calculate and monitor the duration of authorised 
stay of TCNs and identify over-stayers.

Collect, process and exchange extra-EU flights 
passenger data of flights from third countries 
(‘extra-EU flights’).* Strictly speaking used only for 
law enforcement purposes.

Collect and process passenger data of flights 
from third countries (‘extra-EU flights’) for border 
management and law enforcement purposes.

Assess if a visa-free TCN poses a security, irregular 
migration, or public health risk.

European 
Dactyloscopy

EURODAC

Entry/Exit System EES

Passenger Name 
Record

PNR

API

ETIAS

Advanced 
Passenger 
Information

European Travel 
Information and 
Authorisation 
System

European 
Criminal Records 
Information 
System on Third 
Country Nationals

ECRIS-TCN

Share information on previous convictions of TCNs.

Note: 

*  In addition, Article 2 of Directive (EU) 2016/681 gives the Member States the option to 

process data from intra-EU flights.

Source:  FRA, 2018

EU large-scale IT systems are used in a number of migration-related processes, 
including: the pre-arrival risk assessment process, the asylum process, the visa 
application process, during border checks, when issuing residence permits, when 
apprehending migrants in an irregular situation, during return procedures and for 
issuing entry bans. IT systems set up by the EU, including those initially created for 

113

asylum and migration management purposes, are also increasingly being used in 
the internal security context, such as for police checks and in the fight against seri-
ous crimes and terrorism.

Most of the systems set up by EU law focus on identifying a specific person by 
matching alphanumeric or biometric data (currently, fingerprints) with information 
already in the system. With some notable exceptions (see ‘Focus on algorithmic pro-
filing in EU instruments’), they do not themselves contain an algorithm that would 
allow a person to be matched with a profile. They can nevertheless be used to pro-
duce anonymised statistics, including on characteristics which are considered pro-
tected grounds, such as sex or age (see Section 1.2.1).

Such statistics could be used to set up risk profiles applied in future border manage-
ment or policing decisions. As part of the wider scheme for the interoperability of 
EU IT systems, the European Agency for the operational management of large-scale 
IT systems in the area of freedom, security and justice (eu-LISA) will be responsible 
for managing the Central Repository for Reporting and Statistics. This repository will 
draw on data from existing EU databases (Entry/Exit System, ETIAS, Schengen Infor-
mation System and Visa Information System) to generate statistics and analytical 
reports for EU and national bodies.43

Focus on algorithmic profiling in EU instruments

Some existing EU instruments foresee the use of statistics derived from their 
data to generate risk profiles. Besides allowing the detection of ‘known’ 
specific suspects, they contain an algorithmic profiling functionality which 
identifies ‘unknown’ individuals who may be of interest to law enforcement 
and border management authorities.

43 

European Commission (2017), Proposal for a Regulation of the European Parliament and of the Council 
on establishing a framework for interoperability between EU information systems (borders and 
visa) and amending Council Decision 2004/512/EC, Regulation (EC) No 767/2008, Council Decision 
2008/633/JHA, Regulation (EU) 2016/399 and Regulation (EU) 2017/2226, COM(2017) 793 final, 
Strasbourg, 12 December 2017; European Commission (2017), Proposal for a Regulation of the 
European Parliament and of the Council on establishing a framework for interoperability between EU 
information systems (police and judicial cooperation, asylum and migration), COM(2017) 794 final, 
Brussels, 12 December 2017.

114

Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

The European Travel Information Authorisation System (ETIAS),44 adopted in 
September 2018 but not yet in operation at the time of the finalisation of this 
guide, will assess whether visa-exempt third-country nationals present a risk 
in terms of irregular migration, security or public health before granting the 
travel authorisation. Information provided by travellers during the application 
process will be automatically compared with relevant EU and international 
databases, and a set of risk indicators (‘screening rules’) contained in the ETIAS 
system itself. An algorithm developed by Frontex will compare the individual 
profile of the traveller (based on indicators such as age, sex, nationality, place 
of residence, education level and occupation) with these risk indicators to 
determine whether the application should be referred to a manual review.

Passenger Name Record (PNR) data are collected by air carriers from the 
information provided by passengers in flight reservation systems, such as 
travel dates and itinerary, contact and payment details, baggage information 
and other ‘general remarks’ such as dietary preferences. There is no central 
EU database collecting this data, but the EU PNR Directive45 requires air 
carriers to provide the data to the national Passenger Information Units 
(PIUs), which then analyse the information for the purpose of combating 
terrorism and serious crime. Besides detecting the cross-border movement of 
known persons, these data can be used to identify as yet unknown threats by 
processing passengers’ data against specific risk indicators (‘pre-determined 
criteria’). These criteria are set by the PIUs and updated based on new data 
and patterns available in the system.

3.2.1.  Minimising the fundamental rights risks of 

processing data in large-scale databases

Comprehensive data on travellers such as nationality, sex and age, will be used for 
profiling, including algorithmic profiling, at a scale which was not possible in the 
past. Even if these data are anonymised, their processing does not come without 
risk. Conscious or unconscious bias in the selection of risk indicators, design of the 

44 

European Commission (2018), Regulation (EU) 2018/1240 of the European Parliament and of the 
Council of 12 September 2018 establishing a European Travel Information and Authorisation System 
(ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 
2016/1624 and (EU) 2017/2226, COM(2016) 731 final, Brussels, 16 November 2016, Art. 33(5).

45  Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use 
of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of 
terrorist offences and serious crime, OJ L 119, Art. 6(4).

115

algorithms or interpretation of the results could lead to operational actions which 
could result in discrimination of certain categories of persons.46

This section looks at some of these risks, and proposes some ways to minimise 
them. It builds on FRA’s Twelve operational fundamental rights considerations for 
law enforcement when processing PNR data (see case study). While developed in 
the specific context of PNR data processing, some of these considerations are more 
generally applicable, and can be considered as safeguards mitigating the risks aris-
ing from algorithmic profiling.

Case study

FRA operational guidance for setting up national PNR systems

In 2014, in the absence of EU PNR legislation, the European Commission 
requested FRA to provide practical guidance relating to the processing of 
PNR data for law enforcement purposes for those Member States planning to 
set up their own national PNR schemes. The guidance focused on the rights to 
respect for private life (Article 7 of the Charter), protection of personal data 
(Article 8 of the Charter) and non-discrimination (Article 21 of the Charter). 
Some of the proposed safeguards were later introduced into the EU PNR 
Directive.

The twelve fundamental rights’ considerations for law enforcement when 
processing PNR data are:

•  Use PNR data only to combat terrorism and serious transnational crimes.

•  Limit access to the PNR database to a specialised unit.

•  Do not request direct access to airlines’ databases.

•  Delete sensitive PNR data.

•  Set strict security and traceability safeguards against abuse.

•  Reduce likelihood of flagging false positives.

•  Be transparent towards passengers.

•  Allow persons to access and rectify their PNR data.

46 

For more information, see FRA (2017e), and FRA (2018a).

116

Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

•  Do not permit identification of data subjects or retention of data for longer 

than necessary.

•  Transfer data extracted from PNR only to competent national public 

authorities.

•  Only transfer data extracted from PNR to third countries under strict 

conditions.

•  Carry out objective and transparent evaluation of the PNR system.

For more information, see FRA (2014c).

Processing of data revealing protected characteristics should be 
necessary and proportionate

The nature of algorithmic profiling means that the use of personal characteristics 
that are related to protected grounds entails a particularly high risk of discrimina-
tion.47 In the EU context, both ETIAS and PNR legislation prohibit basing risk indica-
tors on criteria that entail a high risk of discrimination, including race, ethnic origin 
or religious beliefs. However, even in the absence of such data, other types of data 
can be strongly correlated with these characteristics, effectively acting as proxies for 
such protected characteristics. For example, the category ‘general remarks’ of PNR, 
possibly containing travellers’ dietary preferences, could reveal certain religious 
beliefs.

A specific combination of data used by the algorithm may also put a category of 
persons at a disadvantage. For example, it may disadvantage persons due to their 
ethnic or social origin or membership of a national minority, which are protected 
characteristics under Article 21 of the Charter. For instance, if a risk profile in ETIAS 
concerning the risk of irregular migration is based on the combination of a certain 
nationality and occupational group, it may result in targeting an ethnic group or 
nationality which in a certain country typically works in a particular economic sector, 
such as construction or agriculture.48

•  Processing of data revealing characteristics protected by Article 21 of the Char-
ter should be limited to what is strictly necessary and proportionate, and never 
result in discrimination. Before any processing, the competent authority should 

47 

48 

European Data Protection Supervisor (2018). 

See also FRA (2017a).

117

assess the data to identify any protected characteristics and remove any data, 
the processing of which would not be lawful. As a good practice, this should be 
complemented by running a matching and removal program with a regularly 
updated glossary of “sensitive terms”.

Profiling criteria should be specific and targeted

Another risk results from the use of broad profiling criteria. Existing EU instruments 
allow significant discretion for the development of profiling algorithms. To assess 
the risk of irregular migration, ETIAS envisages the use of EU and national statistics 
on the rate of overstays and refusals of entry. For security risks, however, it only 
generally refers to information concerning specific security indicators and threats. 
The PNR Directive offers general indications for designing algorithms but does not 
specify what criteria to use to identify persons potentially involved in a terrorist 
offence or serious crime, or what weight to assign to a specific criterion.

Excessively broad criteria lead to a significant number of ‘false positives’, meaning 
that persons are wrongly matched with a certain risk profile. Some of these ‘false 
positives’ might also be discriminatory in nature. For example, a broad definition 
of the criterion ‘past criminal conviction’ means that LGBT individuals would be 
required to report criminal records associated with certain sexual conduct criminal-
ised by some non-EU countries.

•  Assessment criteria should be pre-defined, targeted, specific, proportionate and 
fact-based. Assessment criteria should be tested on anonymised samples. They 
should be subject to regular reviews by an internal auditor to determine whether 
they are still justified by their specific objectives.

•  Before transmitting an alert based on automated processing for further action, 
the competent authority should manually review the data in conjunction with 
other information to determine whether the person matches the risk profile and 
eliminate false positives. Data recipients should provide feedback on the action 
taken on the basis of the alert.

118

Preventing unlawful profiling today and in the future: a guideAlgorithmic profiling

Data processed should be accurate and reliable

FRA’s research confirms that existing large-scale IT-systems contain a significant 
amount of inaccurate data.49 Inaccurate or unreliable data may have multiple nega-
tive effects in the context of algorithmic profiling for border management or law 
enforcement purposes. Inaccurate data may adversely affect individuals but also 
lead to incorrect correlations and a distorted picture, compromising the effective-
ness of police and border management work.

This is particularly relevant in cases of data entered by members of the public, as 
in the PNR data and ETIAS applications, that may be more prone to mistakes than 
official records. Similarly, screening social media accounts, which is foreseen by 
some travel authorisation systems outside the EU, entails a high risk of introducing 
unreliable information into the profiling process. In addition, it carries a particular risk 
of collecting information revealing sensitive personal information protected by the 
Charter, such as political opinion or information relating to sexual life.

•  Provide accurate information to individuals on the collection, storage and pro-
cessing of their data and on the applicable data protection principles. Individuals 
should be made aware of their rights, including the redress mechanisms avail-
able to them.

•  Allow persons to seek to rectify their data where the data are inaccurate, and to 

be informed whether the data have been rectified or erased.

•  Provide effective administrative and judicial redress in case any data protection 
rights have been violated, including if access has been denied or inaccurate data 
have not been rectified or erased.

49 

See FRA (2018c), pp. 81-98.

119

Conclusion
Profiling is a legitimate tool used by law enforcement officers and border guards to 
prevent, investigate and prosecute criminal activity, as well as to prevent and detect 
irregular immigration.

To be lawful, fair, and effective, profiling must be used within the boundaries of the 
law. In particular, profiling must respect equal treatment and personal data protec-
tion requirements.

This will be achieved by a combination of elements. Any profiling should:

• 

treat individuals equally, respectfully and with dignity;

•  avoid profiling individuals based on bias;

•  be reasonable, objective, and intelligence-led; and

•  adequately protect individuals’ personal data and private life.

Different tools are available to police officers and border guards to ensure that these 
principles are known, understood, and upheld in practice:

•  before conducting profiling, officers should receive guidance and training;

•  during profiling, details of the activity should be recorded and stored;

•  after profiling, officers’ actions should be monitored and assessed to identify 

areas for improvement.

Preventing unlawful profiling will not only keep law enforcement officers and border 
guards within the law, it will ensure that their actions are understood and accepted 
by the general public. Boosting trust and confidence in law enforcement and border 
management improves the effectiveness of policing and border management, and 
therefore contributes to increasing safety and security levels in society as a whole.

120

Annex
Table 7: 

Existing and planned EU large-scale IT systems

IT system

Main purpose

Persons 
covered

Applica-
bility

Legal instrument / 
proposal

Biometric 
identifiers

Determine the 
Member State 
responsible for 
examining an 
application for 
international 
protection

Assist with the 
control of irregular 
immigration 
and secondary 
movements
Facilitate the 
exchange of data 
between Schengen 
Member States on 
visa applications 

Applicants 
and benefi-
ciaries of in-
ternational 
protection, 
Migrants in 
an irregular 
situation

28 EUMS 
+ 
SAC

Regulation (EU) 
No. 603/2013 
(Eurodac 
Regulation)

COM(2016) 272 
final (Eurodac 
proposal)

Visa 
applicants 
and 
sponsors

24 EUMS 
(not 
CY, HR, 
IE, UK)1 
+ SAC

Regulation 
767/2008/EC (VIS 
Regulation)

Safeguard security in 
the EU and Schengen 
Member States

Missing 
or wanted 
persons

26 EUMS 
(not CY, 
IE)2 + SAC

Council Decision 
2007/533/JHA 
(SIS II Decision)

COM(2016) 883 
final (SIS II police 
proposal)

European 
dactylo-
graphy 
(Eurodac)

Visa Informa-
tion System 
(VIS)

Schengen 
Informa-
tion System 
(SIS II) 
- police

Schengen 
Informa-
tion System 
(SIS II) 
- borders

Enter and process 
alerts for the purpose 
of refusing entry 
into or stay in the 
Schengen Member 
States

Migrants in 
an irregular 
situation

25 EUMS 
(not CY, 
IE, UK)2 
+ SAC

Regulation 
1987/2006 
(SIS II Regulation)

COM(2016) 882 
final (SIS II borders 
proposal)

Schengen 
Informa-
tion System 
(SIS II) 
- return

Enter and process 
alerts for third-
country nationals 
subject to a return 
decision

Migrants in 
an irregular 
situation

25 EUMS 
(not CY, 
IE, UK)2 
+ SAC

COM(2016) 881 
final (SIS II return 
proposal)

121

  
  
  
  
  
  
  
  
  
  
Entry-Exit 
System (EES)

European 
Travel Infor-
mation and 
Authorisa-
tion System 
(ETIAS)
European 
Criminal 
Records 
Information 
System for 
Third Country 
Nationals 
(ECRIS-TCN)

Calculating and 
monitoring the 
duration of 
authorised stay 
of third-country 
nationals and 
identifying 
over-stayers

Travellers 
coming for 
a short-term 
stay

22 EUMS 
(not BG, 
CY, HR, IE, 
RO, UK)3 
+ SAC

Regulation (EU) 
2017/2226 
(EES Regulation)

Assess if a visa-free 
third-country national 
poses a security, 
irregular migration or 
public health risk

Visa free 
travellers

26 EUMS 
(not IE, 
UK)3 
+ SAC

COM(2016) 731 
final (ETIAS 
proposal)

None

Share information on 
previous convictions 
of third-country 
nationals

Interopera-
bility – Com-
mon Identity 
Repository 

Establish 
a framework for 
interoperability 
between EES, VIS, 
ETIAS, Eurodac, SIS II 
and ECRIS-TCN

Third-
country 
nationals 
with 
a criminal 
record

Third-
country 
nationals 
covered by 
Eurodac, 
VIS, SIS II, 
EES, 
ETIAS and 
ECRIS-TCN

27 EUMS 
(not DK)4

COM(2017) 344 
final (ECRIS-TCN 
proposal)

28 EUMS5 
+ SAC

COM(2017) 793 
final (Borders 
and visa inter-
operability 
proposal) 
COM(2017) 794 
final (Police coop-
eration, asylum 
and migration 
interoperability 
proposal)

Note: 

Planned systems and planned changes within systems are in italics, or shown by a light 
blue background.

 Fingerprints; 

 Palm prints; 

 Facial image; 

 DNA profile.

EUMS: EU Member States; SAC: Schengen Associated Countries, i.e. Iceland, Liechtenstein, 
Norway and Switzerland.
1 

 Ireland and the United Kingdom do not participate in VIS. Denmark is not bound by 
the Regulation but has opted in for VIS. VIS does not yet apply to Croatia and Cyprus, 
and only partially applies to Bulgaria and Romania as per Council Decision (EU) 
2017/1908 of 12 October 2017.
 Cyprus and Ireland are not yet connected to SIS. Denmark is not bound by the Regulation 
or the Council Decision but has opted in for the SIS II, and must decide whether to opt 
in again upon the adoption of the SIS II proposals. The United Kingdom is participating 
in SIS but cannot use or access alerts for refusing entry or stay into the Schengen area. 
Bulgaria, Croatia and Romania cannot issue Schengen-wide alerts for refusing entry or 
stay in the Schengen area as they are not yet part of the Schengen area.
 Denmark may decide to opt in for EES and ETIAS.
 ECRIS-TCN does not apply to Denmark. The United Kingdom and Ireland may decide 
to opt in.
 Denmark, Ireland and the United Kingdom will take part as they participate in the 
IT systems made interoperable.

2 

3 
4 

5 

Source: 

FRA, based on existing and proposed legal instruments, 2018

122

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134

Preventing unlawful profiling today and in the future: a guideGetting in touch with the EU

In person

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Technological  developments  have  triggered  an  increased  use  of  profiling  in  a  wide  range 
of  contexts,  and  using  profiling  tools  to  support  the  work  of  law  enforcement  and  border 
management officials has recently received greater attention from EU Member States. Profiling is 
legitimately used to prevent, investigate and prosecute criminal offences, as well as to prevent 
and detect irregular immigration. But unlawful profiling can undermine trust in the authorities and 
stigmatise certain communities. 

This guide explains what profiling is, the legal frameworks that regulate it, and why conducting 
profiling lawfully is both necessary to comply with fundamental rights and crucial for effective 
policing  and  border  management.  The  guide  also  provides  practical  guidance  on  how  to  avoid 
unlawful profiling in police and border management operations. 

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Information society

Internal security

Non-discrimination

FRA – EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
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Tel. + 43 (1) 580 30-0 – Fax + 43 (1) 580 30-699
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