Overview of human rights v. aviation security

Olga Mironenko Enerstvedt

Nordic Conference in ICT Law, Oslo, 15 November 2013

What is associated with «air passenger rights»?

1. Right to travel

2. Consumer

rights

3. Right to life and safe travelling

• Threat of terrorism and crime• The states must protect passengers’ lives

→ Aviation security rules and regulations, different security measures at the airport and on board the aircraft

Screening and other security procedures:• additional inconvenience

of the travel experience• time-consuming

before 9/11 –

350 PAX per hour

today - below 150

• in some cases intrusive

AVSEC measures• Metal detectors• Hand search• Body scanners• Biometrics• Behavior detection• Video surveillance• Profiling• Air passenger data transfer

from airlines to state agencies• Trusted Traveler Program

Allowed methods of passenger screening in the EU• hand search• walk-through metal detection equipment• hand-held metal detection equipment• explosive detection dogs• explosive trace detection equipment• security scanners which do not use ionising

radiation

Emerging technologies

• Checkpoint of the Future• Integrating devices into airport building

structures • 21 feet long “smart tunnel”• Flight Assistance Security Trolley• Magnetic Resonance Technology

• New millimeter-wave system • X-ray transmission imaging technology

Modern AVSEC approaches

• Pro-active, risk-based and intelligence-led• Randomness and unpredictability• Enhanced collection of personal data• Integration of data with screening • Filter passengers according to risk levels• Additional measures on higher risk

passengers• Improve passenger experience

Impact on human rights

• the right to privacy • data protection• freedom of movement • freedoms of thought, conscience and religion • the right to equal

treatment and

non-discrimination • right to health• rights of the child

Dilemma

? BALANCE?

?Rights to life and safe

travelling Other human rights

Security undertakings Human rights

Limitations of rights

• Derogation during times of emergency (ECHR Article 15)

• Permissible limitations or restrictions: if this serves a legitimate aim, is prescribed by the law in a precise and foreseeable manner, and is both necessary and proportionate

• E.g. ECHR Art.8 (2) “…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, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

TEST: is there a violation?1. Analysis of the exact impact of a concrete security

measure on human rights, including research on the security measure, its features, capabilities, operation modus etc.

2. Which rights are relevant? Applicability of law protecting the rights

3. Is there interference?

4. If yes, is it justified? (is the limitation provided by law and complies with the requirements, i.e. is necessary in a democratic society in the interests of national security?)

5. Is there violation?

Right to life• positive obligations of the state to safeguard the

lives of people (not unlimited)• security measures may be inadequate, excessive

or insufficient- failure to provide enough security and

prevent the injury- a passenger may suffer due to excessive

security• excessiveness issues

AVSEC

• Existence of a risk to the life of air passengers is known (?)

• Is this risk “real and immediate”?• Preventive character• Shooting down the aircraft?• The right to life can serve as a good

argument for the enhanced technologies and methods

Right to freedom of movement

• Air passenger and airline: contract of carriage• This right include:

1) the right to freedom of movement within a country, which includes the right to choose where to live within the country;

2) the right to leave any country, regardless of your citizenship; and

3) the right to enter a country of which you are a citizen.

A broad view: between states.

Limitations:

• immigration issues • a full and unlimited realization of this right

implies a risk for security• lawful grounds for limitation of this right:• “in accordance with law and are necessary in a democratic

society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (Article 2 of Protocol No.4 to the ECHR)

• E.g. restrictions for persons charged with a criminal offence

Examples of restrictions in the interests of «national security»

• Secure Flight (USA)• Social sorting• Watch lists, blacklists, no-fly lists • Passport control and visa regimes • Traceability techniques • Security requirements

The right to freedom of thought, conscience and religion

• Includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance (Art.9 ECHR).

• Some religious rules require definite behavior in public, non-religious places, such as airports or airplanes

• Wearing or nor wearing hijab in public places – various

In security

• El Morsli v. France (15585/06, declared inadmissible 04.03.2008) – the Court held that identity check as part of the security measures served the legitimate aim of public safety and obligation to remove headscarf was very limited in time.

• Muslim women may be prevented from going through body scanners due to religious restrictions on modesty

• Body scans were rejected in Islamic culture states• Availability of alternative measures?

The right to equal treatment and non-discrimination

• Discrimination means any distinction, exclusion or restriction made on the basis of such grounds as sex, race, colour, language, religion, etc. which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of human rights and fundamental freedoms. It is linked to the marginalization of specific population groups, making these groups more vulnerable

In AVSEC

• Security measure may be discriminative in itself (e.g. profiling, black- and no-fly lists, Trusted Traveler Program, ID classifications at borders)

• Security measure may be exercised in a discriminative manner (e.g. if security measure is applicable on a selective basis at the discretion of security personnel)

Right to health

• Airports and aircraft are a part of daily life of thousands of people

• The environment established there should satisfy to the requirements of normal environmental conditions

• Dispute around body scanners• EPIC v. DHS (request for radiation

emissions documents)

Rights of the child

• Due to the stage of their physical and mental development, children are especially vulnerable and face particular challenges with reference to human rights.

• Children are afforded special protection, with additional guarantees

• Same security measures as adults• Special data protection rules• UK: exemption in the case of scanners

Right to privacy - Article 8 of ECHR

• Everyone has the right to respect for his private and family life, his home and his correspondence

• Positive obligation of the state - to provide and ensure this right

• Negative – to withhold from interference• Exceptions: if 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, for the protection of health or morals, or for the protection of the rights and freedoms of others

• Case law: a broad interpretation

Data protection• ECHR: extension to the right to privacy• Separate right (Art. 8 of the CFREU,

TFEU Art. 16)

Directive 95/46/EC:

• Personal data must be processed fairly and lawfully• collected for specified, explicit and legitimate purposes

and not further processed in a way incompatible with those purposes

• adequate, relevant and not excessive in relation to the purposes;  accurate, kept up to date  

• kept in a form which permits identification of data subjects for no longer than is necessary for the purposes

• data subject has the right to be informed of the data processed, the right to access

• transfer of personal data from the EU to the countries lacking adequate level of protection is prohibited

Privacy and data protection

Priv

acy

Dat

a pr

otec

tion

These rights are close but not identical

• Privacy is a right described in prohibitive ways • Data protection is about policy, legal and

administrative aspects of personal data processing

• They overlap, but data protection can be both more and less than privacy and vice versa

• Different security measures may have impact on both

• It is important to analyze on a case-to-case basis

Relevant security measures• Metal detectors? - United States v. Epperson (1971) • Hand search? • Body scanners? • Biometrics? • Behavior detection? • Video surveillance and CCTV? • Profiling? • Transfer of passenger personal data from

airlines? • Trusted Traveler Program, PreCheck?

Finalizing remarks

• Modern aviation security measures raise concerns with reference to a number of human rights

• Is it possible that both the security needs and human rights standards could co-exist all together?

• Ideally, security measures must be accompanied by strong and adequate safeguards which satisfy and ensure the human rights requirements

• Not “security versus human rights” but “security plus human rights”

• “Security plus privacy” with privacy being antidote to surveillance

Thank you for your attention!

olga.enerstvedt@jus.uio.no