Criticism to body scanners is mounting

Martin Scheinin, the UN special rapporteur on the protection of human rights while countering terrorism, presented his report on the right to privacy to the UN Human Rights Council on Monday. In his oral statement to the Council, the Rapporteur said that “despite the rapid developments in the field of surveillance and other privacy-intrusive technologies, privacy is not yet dead.”  He commented as well upon the use of body scanners:

Technologies that are highly intrusive into privacy tend to be ineffective in doing the actual job of preventing terrorism. Reference can be made to the congoing hype about full body scanners at airports. The hasted decision to take them into use after the Christmas Day terrorist attempt on a flight between Amsterdam and Detroit has been more a political response when politicians need to “do something” to respond to the calls by the media and the expectations of the public, rather than a carefully designed security measure.

Full body scanners are a disproportionate intrustion into privacy when measures are not taken to minimize the negative privacy impact through

• not storing any images
• securing that no human person sees the original image
• including an algorithm in the design of the device that anonymizes the image of the person but does not blur the image of the suspect items.

Full body scanners are ineffective in detecting a genuine terrorist threat, if they do not reveal dangerous substances in body cavities, body folds or hand luggage. They may also give a false feeling of security and allow the real terrorists to adapt their tactics to the technology in use. Counter-terrorism work has been too much focused on going after the ‘bad person’, when better results could be obtained by looking for technological solutions that are less intrusive and non-discriminatory while at the same time detect what should be detected, namely explosives.

The detection of explosive substances from distance is hopefully one element in designing solutions that are at the same time compatible with human rights and effective in preventing acts of terrorism. There already exist handheld devices that can detect small quantities of explosives from distance and through clothing or even a solid wall, so that no features of the human person will need to be exposed for detecting the explosives. When explosive substances are detected, there is a crime suspect, and targeted more intrusive measures will be legitimate and proportionate from the perspective of human rights law.

Scheinin’s comments arrived simultaneously to the release of documents obtained by the Electronic Privacy Information Center (EPIC), which showed that more than two dozen complaints were filed by travelers who were subjected to whole body scans over the past year.

The 51 pages of documents show that travelers were often not fully informed about the scans or what the process involved. Some complained about a lack of instructions or signage regarding the scanning machines, while others said they were not informed about a pat down alternative available to those who don’t want to be scanned. Travelers also expressed concern about their privacy being invaded, of feeling humiliated, of radiation risks to pregnant women and of children being subjected to the scans.

The Department of Homeland Security plans to have 500 body scanners in U.S. airports by the end of 2011.

Scheinin also told journalists later that although the scanners violate human rights generally, there are “particular sensitivities in respect of women, certain religions and certain cultural backgrounds.”

In this context, it is important to note that last week two women, one a Muslim, have become the first people in the UK to be barred from boarding a flight because they refused to go through a full-body airport scanner after they refused to be scanned for medical and religious reasons. The Muslim woman decided to forfeit her ticket and left her luggage at the airport. Her companion also left the airport saying she did not go through the scanner on medical grounds because she had an infection.

It is worthwhile noting that the introduction of body scanner did not come with any additional legal obligations on passengers; like all other airport security measures, compliance is simply a condition of flying. (Here you can find the interim code of practice issued by the UK Department for Transport on the use of body scanners. It states, inter alia, that the security officer guiding the passenger through the machine never sees the image, and that the employee viewing the scan must be based away from the passenger, in a secure room. The two officers communicate with wireless headsets; and, once viewed, the scan cannot be saved, printed or transmitted.A full code of practice covering privacy and health issues is currently being discussed in Whitehall.)

The passenger who refuses to be scanned is free to leave the airport, subject to one caveat. Schedule 7 of the Terrorism Act 2000 gives the police additional powers at ports (including airports) to detain and question for up to nine hours anyone who they believe is using the port to travel, in order to determine whether that person is a terrorist – as in, is “concerned in the commission, preparation or instigation of acts of terrorism”.

Criticism is mounting

The option of having a full-body pat-down search instead, offered to passengers at US airports, is not available despite warnings from the government’s Equality and Human Rights Commission that the scanners, which reveal naked bodies, breach privacy rules under the Human Rights Act. It is not unlikely that the commission will launch a high court challenge before the introduction of the scanners at all British airports by the end of this year.

A group of Muslim-American scholars, the Fiqh Council of North America, last month argued that going through the scanners would violate Islamic rules of modesty because they expose people’s private parts.

“It is a violation of clear Islamic teachings that men or women be seen naked by other men and women,” reads the fatwa issued Tuesday. “Islam highly emphasizes haya (modesty) and considers it part of faith. The Quran has commanded the believers, both men and women, to cover their private parts.”

The Council on American-Islamic Relations, which has a chapter in Michigan, says it endorses the fatwa.

“We support the Fiqh Council’s statement on full-body scanners and believe that the religious and privacy rights of passengers can be respected while maintaining safety and security,” said Nihad Awad, national executive director of CAIR.

The pope has also expressed concerns this month, telling an audience from the aerospace industry that, notwithstanding the threat from terrorism, “the primary asset to be safeguarded and treasured is the person, in his or her integrity”.”It is essential never to lose sight of respect for the primacy of the person.”

More info on the subject from UK MP Sarah Ludford here.