On Wednesday the 16th of June 2010 the European Commission released its long-awaited Communication on the use of body scanners at European airports (COM(2010) 311/4). The Commission is in favour of a common European approach to ensure that, where Member States decide to use security scanners, “their deployment and operation is based on common standards, requiring basic detection performance as well as ensuring a harmonised level of compliance with European fundamental rights and health provisions.” Three members of the DETECTER-consortium explain why the Communication is disappointing from a human rights and ethical point of view.
DETECTER (Detection Technologies,Terrorism Ethics, and Human Rights) is a three-year Collaborative Research Project under the European Union Framework 7 Security programme to co-ordinate and contribute work on detection technologies, counter-terrorism, ethics and human rights. It runs until the end of 2011.
Martin Scheinin, is a Professor of Public International Law at the European University Institute and a member of the DETECTER research project. (Prof. Scheinin also serves as United Nations Special Rapporteur on human rights and counter-terrorism and has in that capacity recently issued a report on the erosion of the right to privacy in the fight against terrorism.)
“From a human rights perspective, the Commission communication is a disappointment. It ignores a number of critical observations made earlier in the process, inter alia, by the EU's own Fundamental Rights Agency. The section on the protection of fundamental rights (paras. 50-59) is brief and focuses on human dignity and data protection. While both of these issues are relevant, the latter one is very easy to resolve and the outcome of the discussion in the communication becomes therefore misleading.”
“Although some other human rights are mentioned (para. 50), the central issue of interference in the right to privacy is ignored. Therefore, the document does not include even an effort to subject the use of security scanners to a proper test of permissible limitations, including the assessment of the necessity, effectiveness and proportionality of the interference. This is disappointing, as the document duly recognizes that such an assessment is of decisive importance for any decision to take security scanners in use (para. 16).”
Nevertheless, the communication contains an important statement of principle: "Today technologies exist that neither produce images nor emit radiation" (para. 13 and repeated in para. 87). The discussion on the potential use of security scanners needs to be restricted to such technologies, as the use of more intrusive technologies cannot be necessary and proportionate. Also the reference to evolving technologies for direct detection of explosive substances (para. 38) is promising, and should guide future action.
From the perspective of human rights, the Commission's conclusion that the "fundamental rights issues can be dealt with by a combination of technical equipment specifications and operational rules" (para. 87) is clearly inadequate. Instead, any future discussion on common European standards for airport security should be limited to technologies that neither produce images nor emit radiation.”
Professor Tom Sorell , Co-ordinator of the DETECTER project at the University of Birmingham, said:
“The Communication is less clear than it might be in recommending body scanners that produce mannequin or stick figure images. Although §53 explicitly refers to this technology, and implies that it is a solution to some of the problems of revealing images (§51), the technology is not identified clearly as a possible solution to these problems. Again, in view of the variety of images that might be generated by scanners, Directive 95/46/EC is ambiguous in its requirement that people be informed that images of their bodies might be being used. The kind of image should also be made clear. Finally, it is unclear what Automatic Threat Recognition(§57) would add to body scanning with mannequin images. Automatic Threat Recognition without human checking might even be dangerous, if it led to an armed intervention in a crowded airport or other transport site.”
Mathias Vermeulen, DETECTER Research Fellow at the European University Institute said:
“The Communication avoids to answer in definitive terms the question whether the use of the scanner should be mandatory or optional, which would be a crucial element to include in any further European legislative initiative. The Commission seems to offer passengers a false choice. Passengers may only refuse to go through the scanner when “alternative detection methods of similar effectiveness” such as full body hand searches are in place. When there is no such “regular alternative” the Commission seems to suggest that a person cannot board the plane when he refuses to go through the scanner. This is a disproportionate response which would increase the level of intrusion of airport security measures.”
“The Commission rightly observes that a “more holistic approach” is required to improve airport security, but it is wrong to include “behavioural observation” as an element of such an approach (par.23). Recent reports from the United States have confirmed that no scientific evidence exists to support the detection of suspicious passengers or the inference of future behaviour, including intent, in an airport environment.”
