Full body-scanners: risks of violation of Article 8 of the European Convention on Human Rights

The recent attempted bombing to the Detroit flight on 25 December 2009 confirmed the weakness in aviation security to detect non-metallic items. As a consequence a reignited interest towards the introduction of full-body scanners in airports is taking place worldwide. 

Full-body scanners create an image of the full body which shows the surface of the skin and reveals objects that are on the body, not in the body. Personal identification is not possible and the image is not retained. The two main technologies used are: backscatter (relying on low intensity x-ray) and millimetre wave (using non-ionizing radio frequency energy). These technologies are capable of detecting body-worn threat items and have the potential to reveal and retain sensitive information about the individual, including health conditions.

Therefore, in order to understand whether such measure should be permitted, the following three cumulative conditions must be met:

• Legitimacy: a legal basis for the restriction should exists. The objective of the full-body scanner must be legitimate and be coherent with the values and principles of the European Union as well as the need to protect the rights and freedoms of individuals;

• Respect the principle of Rule of Law: the conditions under which the restriction to the above-mentioned rights is imposed must be provided for by law and accessible to the individual affected by the restriction and sufficiently precise to enable the person to understand its scope and foresee the consequences of his actions so as not to break the law and protect him from arbitrariness;

• Proportionality: the use of the full-body scanner must be proportionate to the end pursued so that they can be considered necessary.

Legitimacy

At the European level, the legal basis for the implementation of full-body scanner can be found in Regulation (EC) 300/2008 of the European Parliament and of the Council.

This Regulation aims to protect persons and goods within the European Union by preventing acts of unlawful interference with civil aircraft, including screening of persons before they enter security restricted areas at airports and board and aircrafts. Hence, the use of body scanners is included within the scope of the Regulation.

However, not only full-body scanners do not screen body caveats, but experts also say that plastic, chemicals and liquids can go undetected even in a full-body screening, greatly reducing their effectiveness. Hence, despite the existence of a legal basis for permitting such searches, the fact that full-body scanners are not able to detect unlawful material puts under question their legitimacy and proportionality thereof.

Furthermore, the legal basis for screening passengers has been put under question by the European Parliament. In its non-legislative Resolution on the impact of the use of body scanners in the field of aviation security on human rights, privacy, personal dignity, health and data protection it stated:

“This draft measure could exceed the implementing powers provided for in the basic instrument, as the measures in question cannot be considered mere technical measures relating to aviation security, but have a serious impact on the fundamental rights of citizens”.

This is because the Commission proposed a draft regulation supplementing the common basic standards on civil aviation security to include “body scanners” implying that within the existing common basic standards, body scanners were not included.

Proportionality

The European data protection authorities have emphasised the great impact on passengers’ privacy that full-body scanners have and, therefore, they have underlined the necessity to strike the right balance between the body scanners’ necessity and the intrusiveness derived from their introduction.

To reduce the invasively nature of the full-body scanners, the Privacy Impact Assessment of the Homeland Security suggests that passengers may choose alternative screening to the full-body scanner.

However, as the Data Protection Working Group stated, “making them voluntary undermines the(se) reasons for needing them”. As the European Data Protection Supervisor correctly pointed out, this will depend on how, where, when, and with which rigorous procedures they are installed and used and also on which guarantees for the interested persons are put in place.

Although this measure may reduce the invasive nature of the body scanners, the absence of safeguards, such as the monitoring of who is being scanned and how, means that the authorities are unable to check if anyone is being unfairly selected on the basis of their race, religion, gender, age, sexual orientation or disability, as the leading human rights lawyers of Matrix Chambers stated (Matrix Chambers is multi-disciplinary barristers’ chambers which has been called upon by  the Non Departmental Public Body Commission on Equality and Human Rights of the United Kingdom to assess the human rights and equalities implications of the United Kingdom’s introduction of full-body scanners at Heathrow and Manchester Airports).

Furthermore, this intrusiveness should be considered together with the health impact that the backscatter X-ray machines have, by exposing individuals to ionizing radiation similar to those used by common medical X-rays. According to Dr. James Thrall of the American College of Radiology and chief of radiology at Massachusetts General Hospital in Boston, the radiation levels are well below the threshold that could be considered a risk to an individual’s health. However, additional studies should be carried on to verify the validity of such position.

Another important issue to be taken into consideration concerns the costs of the full-body scanners vis à vis their efficacy. The fact that the cost of ordering them amounts at approximately €115,000 each, summed up to all the changes that would have to be made to airports, require a precise cost assessment which should be delivered before validating the introduction of such a measure.

Respect the principle of the Rule of Law

Assuming that the first two conditions can be met, despite the aforementioned limitations, there still remains a third non-negotiable aspect that legislators should carefully validate when considering the introduction of full-body scanners: the respect of the rule of law.

According to this principle, decisions should be made by applying known principles or laws, without the intervention of discretion in their application and providing safeguards against arbitrary interventions. Such safeguards are laid down in a variety of legal instruments, including Article 8 of the ECHR, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union as detailed in Directive 95/46/EC.

All these instruments establish data protection as a fundamental principle, which with the entry into force of the Lisbon Treaty, has become a fundamental right on its own.

In addition to these instruments, under the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, the parties are required to apply the principles it lays down in order to ensure respect in their territory for the fundamental human rights of all individuals with regard to processing of personal data.

Therefore, the question that needs to be answered concerns whether the use of full-body scanners complies with these provisions.

According to Matrix Chambers, the introduction of full-body scanners “is on balance likely to infringe Article 8 of the European Convention on Human Rights and Fundamental Freedoms.” It recalls, that in S and Marper v United Kingdom the European Court of Human Rights found that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 and that the concept of “private life” as established in Article 8 ECHR covers the physical and psychological integrity of a person, including the person’s right to their image (Sciacca v. Italy).

Therefore the use of such scanners generates an invasion of privacy which in Matrix Chambers’ view cannot “be “in accordance with the law” as required under article 8(2) and in relation to which no effective waiver is currently routinely secured”.

In order to minimise the level of intrusion, the Privacy Impact Assessment on the whole body imaging conducted by the Homeland Security, foresees that the screener will be used at remote distance of the person being examined.

However, rating the level of intrusion of body scanners depends, on the one hand on cultural and personal context and, on the other hand on the technical features of the scanner.

 Scanners providing a detailed picture of the human body are highly intrusive, whereas scanners that present a standardised body image (mimic board) with identification areas to be searched further are less intrusive.

Furthermore, although it is true that passengers forgo their right to privacy to the extent necessary in the interest of security at the moment they purchase their ticket, not all such waivers are automatically effective.

Clear and comprehensive information about full-body scanners should be provided before the ticket is purchased and alternative body search should be foreseen if a passenger refuses to be screened. However, as it has been explained earlier, this undermines the  reason for having them in first place. 

Despite the risk to breach privacy and anti-discrimination laws, the US strongly support the boosting of airport security with full-body scanners and this request has the backing of the EU’s anti-terror coordinator Gilles de Kerchove. On the contrary, Member States of the European Union still have doubts in this regard. While during the informal meeting of the EU interior ministers with the U.S. Homeland Security chief on Thursday 21 January 2010 in Toledo, Spain and Germany expressed reservations about scanners, their counterparts with responsibility for transports who met in La Coruña on Friday 12 February are less opposed to the introduction of full-body scanners.

The European Commission is expected to publish a report examining all the above mentioned issues by April, on the basis of which the Transport Council will then adopt a common position.

The legitimate reasons behind the introduction of these measures may be considered proportionate if there is a balance between the level of intrusion and the added value in terms of security for passengers. The use of body scanners as such is not against EU privacy laws. However, the feasibility of the introduction of full-body scanners is one thing, another is their desirability.

LB