European Commission Body Scanners Communication unlikely to meet European Parliament concerns

The Commision has finally released its long-awaited communication on body scanners. Read it here:
Communication from the Commission to the European Parliament and the Council on the Use of Security Scanners at EU airports (COM(2010) 311/4. 

Some observations:

The Commission refuses to talk about body scanners, but prefers the more neutral ‘security scanners’ in order to get rid of the negative connotations attached to the term ‘body scanners’.

It took the Commission a year and a half to write this Communication. It had already received relevant input from the Fundamental Rights Agency, the EDPS, WP 29 Party by mid-February 2009. The delay plays in the hands of the Commission as it is able now to take into account new types of scanners. This helps the Commission in saying (par. 13) that now “technologies exists that neither produce images nor emit radiation”. The EDPS backed this up in the beginning of this year as well.

While body scanners are always introduced as a counter-terrorism measure, the Communication emphasizes that its main aim is to improve ‘airport security’ as such. About the Detroit bombing the Communication for instance says vaguely:

45:  Although questions were raised whether Security Scanners would have been able to prevent the Detroit incident of 25 December 2009, it is clear that given the technology at hand today, the Security Scanners would have maximised the probability to detect the threats and will provide us with a considerably enhanced prevention capability

Also in the general introductory paragraph 11 terrorism is not mentioned:

“Any limitation [to human rights]must be provided for by law and respect the essence of these rights. It must be justified, which entails that it is necessary for and capable of meeting objectives of general public interest (for example aviation security) recognised by the European Union and respect the principle of proportionality.”

4. Privacy concerns?
There are only 8 reference to privacy/the right to private life in the whole document. The communication makes clear from the beginning that the right to privacy is not its main concern:

Par. 1: Different standards of scanners currently deployed in Europe bring a serious risk of fragmenting fundamental rights of EU citizens, impeding their rights of free movement and escalating their health concerns related to new security technologies.

Note also that not the scanners as such pose a risk to fundamental rights, but the ‘different standards of scanners currently deployed’.

The Communication downplays significantly the outcry on body scanners. It just mentions in par. 50:

The capability of some screening technologies to reveal a detailed display of the human body (even blurred), medical conditions, such as prostheses and diapers, has been seen critically from the perspective of respect for human dignity and private life. Some persons also might face difficulties reconciling their religious beliefs with a procedure foreseeing the review of their body image by a human screener.

5. Weak human rights elements

According to Prof. Martin Scheinin, professor of international law at the European University Institute, and current UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism the Commission communication is a disappointment from a human rights perspective.

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).

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.”

6. ‘Mannequin solution’ is not sufficiently endorsed

According to Scheinin:

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.

Professor Tom Sorell , Co-ordinator of  the DETECTER project at the University of Birmingham, comments as well:

“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.”

7. Mandatory scanners?
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.

8. A holistic approach?
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.


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