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Human rights and counter-terrorism - implications of online and offline

surveillance?

Professor Martin Scheinin, EUIFormer UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (2005-2011)Melbourne 6 September 2012

9/11 and the ‘Long Decade’

• The most drastic backlash in human rights protection since their emergence after WWII

• Or since Immanuel Kant’s categorical imperative?

• Much of governmental human rights rhetoric was only lip service?

• Many central principles were compromised, • Such as the prohibition against torture

• Law itself was subjected to skepticism/nihilism• Wide impact on many members of society

• Were there also positive consequences? 3

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Human rights affected in the fight against terrorism

Fr. of Expression

Right to Privacy

Pr.ag.Torture

The death of the right to privacy?• Privacy as a “weak right” to start with

• Subject to derogation (ICCPR and ECHR)• No full limitations clause in ICCPR art. 17• Privacy means so many things (e.g. ECHR)

• Confronted by huge challenges• Technological advances• International terrorism• Broadening police powers

• Terrorism now being the “good enemy”

• Genuine situations of tradeoff5

ICCPR article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

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The limitations paradigm: ‘Balancing’

• The metaphor about ‘balancing’ between security and rights has become very common

• Carries the risk that the balance will always (or at least too often) be struck to the detriment of the individual, in the abstract

• Erodes the distinction between absolute (jus cogens or non-derogable) and other rights

• Misses that every human right includes an inviolable core

• May result in too much of judicial deference in respect of the executive, or the domestic level 7

Special Rapporteur’s report on privacy 2010

• Legal issues• Derogations from art 17 have been sweeping in

nature, and there have not been many• There is only one single reservation to article 17!• In practice, the absence of a limitations clause may

paradoxically have “strengthened” article 17• Categorical decisions about interference = violation• E.g. Sayadi and Vinck v. Belgium (HRCttee)• Foreseeability and persuasiveness would be improved

through a proper limitations test derived from GCs 16 and 27 plus other interpretive practice

• Factual developments (technology)

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Controversial counter-terrorism technologies

• Artificial intelligence• Data Mining: intelligent combining of

various databases and sources, for predictive purposes such as ‘profiling’

• Internet Surveillance: moving from detecting content to monitoring emotions and patterns

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Controversial counter-terrorism technologies

• Artificial intelligence• Biometrics (for identification)

• Body Scanning• Facial Recognition Software (modern airport design)• Fingerprint Scanning (digitalization)• Face Thermogram• Gait Recognition• Hand Geometry Measurement• Iris Scanning• Retinal Scanning• Voiceprinting• DNA Identification (through marker genes) 10

Controversial counter-terrorism technologies

• Artificial intelligence• Biometrics (for identification)• Detection technologies

• Brain Scanning (new ‘truth machine’)• Metal Detector (X-ray)• Body Scanner (other waves)

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Controversial counter-terrorism technologies

• Artificial intelligence• Biometrics (for identification)• Detection technologies• Surveillance

• Of places (cameras, listening devices)• 200.000 CCTV cameras in London

• Of communication (phone, mobile phone, internet, skype etc.)

• Of persons (incl. GPS and radio frequency ID)• Constant location tracking

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S. and Marper v. UK(ECtHR 4 Dec 2008)

• DNA samples, DNA profiles and fingerprints retained by the police in nationwide database after acquittal• Was an interference in private life (art. 8)• Served a legitimate aim• Was disproportionate (para. 125)

• Did the European Court of Human Rights understand the challenges involved? • Uniform standard for fingerprints, • DNA samples and DNA profiles

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S. and Marper v. UK(necessity/proportionality)

• 105. The Court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today's European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification.

• 125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. .14

Towards a proper limitations test

1) Provided by the law2) Inviolability of the essence of any HR3) Necessary in a democratic society4) No unfettered discretion5) Serving a legitimate aim not enough; must

be necessary for reaching it6) Proportionality: appropriateness, least

intrusive, proportionate to the interest7) Consistent with other human rights

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Recommendations by the Spec. Rapp.• Counter-terrorism policies must

include privacy impact assessments.• Research and development resources

to privacy-enhancing technologies.• HR Council should initiate

• Global declaration on data protection and data privacy

• Human Rights Committee to draft• new General Comment on article 17 of,

with the a proper limitations test. 16

Full body scanners

• Human rights affected• Primarily privacy• Secondarily nondiscrimination,

movement, bodily integrity• Probably not data protection

• Showing images of the naked body is considered highly intrusive by everyone, and even more so by many groups

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What is wrong with full body scanners?• Reacting to public attention, not to real

security threats• The necessity test may fail

• Not choosing the least intrusive method• Proportionality test may fail

• Doubts about their effectiveness• Easy to avoid (body cavities, body folds,

hand luggage) – terrorists can adjust their tactics

• Even more so, when choice is introduced• The necessity test may fail 18

What’s wrong?

• Increasing the overall level of intrusion• The idea of a “choice” is false

• The discriminatory dimension• Many women experience greater intrusion• Intolerable level of intrusion for some

religious groups• Targets persons with disabilities and

transgender persons

• Better technology may be available• Direct detection of explosives from distance

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Law is the balance(A/HRC/16/51, paragraph 12)

• "Through the careful application of human rights law it is possible to respond effectively to the challenges involved in the countering of terrorism while complying with human rights. There is no need in this process for a balancing between human rights and security, as the proper balance can and must be found within human rights law itself. Law is the balance, not a weight to be measured."

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SURVEILLESurveillance:

Ethical Issues,

Legal Limitations,

and Efficiency

An FP7 Project funded by the European Commission under SEC-2011.6.1-5

Collaborative project

• 7 academic partners from 5 EU MS1) European University Institute (Italy) –

coordinator

2) University of Birmingham (UK)

3) Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Sweden)

4) Institute d’Etudes Européennes of the Université Libre de Bruxelles (Belgium)

Collaborative project

• Applied Research5) Technische Universiteit Delft (The Netherlands)

6) Centre for Security and Society at Albert-Ludwig University (Germany)

7) Fraunhofer Institute of Optronics, System Technologies and Image Exploitation (Germany)

Collaborative project

• Two partners representing strong end-user engagement8) European Forum for Urban Security

(France)

9) Merseyside Police (UK)

WP 2: Survey of surveillance technologies (lead: UoB)

• Objective: describe and systematize the kinds of surveillance technology used and being developed within European jurisdictions– Input from technology developers, local

authorities, police forces, and human rights specialists

WP 2: Survey of surveillance technologies

• Result: up-to-date matrix of surveillance technologies, combining several criteria for classification including – (a) development cost, and cost of built in

‘privacy by design’ features – (b) usability – taking into account budgetary

restraints of end-users– (c) intrusiveness into fundamental rights

WP 3: Perceptions and effectiveness of surveillance

• Objective• Assess benefits and costs of surveillance

technology • Proposals to increase effectiveness of

surveillance taking into account• (negative) perceptions• economic costs• legal limitations• ethical issues

WP 3: Perceptions and effectiveness of surveillance

• ALU-FR– European-level survey on perceptions of

selected surveillance systems– Design a framework for measuring and

evaluating people's perceptions of new surveillance technologies already during their design process

• Fraunhofer-IOSB• Assess system effectiveness relating to the

technical strength of the system but equally taking legal and social requirements into account

WP 3: Perceptions and effectiveness of surveillance

• Delft– Develop cost model for surveillance

technologies– Design a research methodology for assessing

the effectiveness of selected surveillance systems

WP4 Law and ethics of surveillance

• (1) the use of surveillance technologies in three different phases of countering crime in a European context (prevention, investigation and prosecution)– Ethical and legal risks arising from profiling as

preventive policing (UoB + EUI)– Substantial and procedural criminal law

dimension of use of surveillance tech (ULB) – Fundamental rights analysis (EUI)

WP4 Law and ethics of surveillance

• (2) legal and ethical impact of the retention of data produced by surveillance technologies– Retention of data and their use in criminal

justice systems in 8 EU MS (Belgium,France, Germany, Ireland, Netherlands, Portugal, Romania, UK)

– ethical issues related to the risks arising from data sharing, the consequences of error, the use of surveillance data for purposes it was not authorized for

WP4 Law and ethics of surveillance

• (3) Legal and ethical analysis of the scope and content of the public dimension of the right to privacy