A/HRC/48/Add.xx I. Introduction 1. The present report continues the analysis initiated by the Special Rapporteur in her prior report to the Human Rights Council, entitled “Racial discrimination and emerging digital technologies: a human rights analysis”.1 In that report, the Special Rapporteur introduced an equality-based approach to the human rights governance of emerging digital technologies, with a focus on the intersection of these technologies with racial equality and non-discrimination principles under international human rights law. She urged State and nonState actors to move beyond “colour-blind” or “race-neutral” strategies that ignore the racialized and ethnic impact of emerging digital technologies, and instead to confront directly the intersectional forms of discrimination that result from and are exacerbated by the widespread adoption of these technologies. This approach further entails moving beyond the tendencies of human rights and regulatory frameworks to focus only on explicit prejudice in the prohibition of racial discrimination. The prior report examined discrimination on the basis of race and ethnicity (including indigeneity), and drew attention to the effects of gender, religion, and disability status. The present report brings additional nuance by focusing on the xenophobic and racially discriminatory impacts of emerging digital technologies on migrants, stateless persons, refugees and other non-citizens, as well as on nomadic and other peoples with migratory traditions. In this analysis, the term “refugees” includes asylum seekers who meet the refugee definition but whose status as refugees has not been formally recognized by any State. Furthermore, this report addresses how the deployment of emerging digital technologies to contain the COVID-19 pandemic has accelerated these discriminatory trends. 2. Digital technologies now play a central role in mediating the enjoyment of fundamental rights, with States and private corporations relying upon these technologies to deliver essential goods and services.2 Experts have usefully coined the term “digital borders”3 to specify borders whose infrastructure increasingly relies upon machine learning, big data, automated algorithmic decision-making systems, predictive analytics and related digital technologies. These technologies form part of identification documents and systems, facial recognition systems, ground sensors, aerial video surveillance drones, biometric databases and even visa and asylum decision-making processes. Recently, border and immigration enforcement has experienced accelerated digitization in response to the COVID-19 pandemic. 3. Although emerging digital technologies are now prevalent in the governance of all aspects of society, unique concerns exist in the border and immigration context for at least two reasons. Under most, if not all, national governance frameworks: (a) Non-citizens, stateless persons and related groups have fewer rights and legal protections from abuse of State power, and may be targeted by unique forms of xenophobic private violence; (b) Executive and other branches of government retain expansive discretionary, unreviewable powers in the realm of border and immigration enforcement that are not subject to the substantive and procedural constraints typically guaranteed to citizens. 4. Refugees, migrants and stateless persons are subject to the violations enumerated in this report on account of their national origin, race, ethnicity, religion and other impermissible grounds. These violations cannot be dismissed as permissible distinctions between citizens and non-citizens. In this regard, the Special Rapporteur calls attention to her prior report on racial discrimination on the basis of citizenship, nationality and immigration status. 4 5. Digital borders enhance the scope and precision of the racially discriminatory operation of borders. Governments and non-state actors are developing and deploying emerging digital technologies in ways that are uniquely experimental and dangerous in the 1 2 3 4 A/HRC/44/57. See, e.g., A/74/493; A/73/348; A/HRC/44/57. See, e.g., Dennis Broeders, “The New Digital Borders of Europe: EU Databases and the Surveillance of Irregular Migrants” (2007). A/HRC/38/52. 3