Overview of human rights v. aviation security Olga Mironenko Enerstvedt

1. Overview of human rights v. aviation security Olga MironenkoEnerstvedt Nordic Conference in ICT Law, Oslo, 15 November 2013

2. What is associatedwith «air passengerrights»? 1. Right to travel 2. Consumer rights

3. 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

4. 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

5. AVSEC measures • Metaldetectors • Hand search • Body scanners • Biometrics • Behavior detection • Video surveillance • Profiling • Air passenger data transfer from airlines to stateagencies • Trusted Traveler Program

6. 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

7. 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

8. 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

9. 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

10. Dilemma Security undertakings ? BALANCE? ? Human rights Rights to life and safe travelling Other human rights

11. 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.”

12. TEST: is there a violation? • 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. • Which rights are relevant? Applicability of law protecting the rights • Is there interference? • 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?) • Is there violation?

13. 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

14. AVSEC • Existence of a risk to the life of air passengers is known (?) • Is this risk “real and immediate”? • Preventive character • Shootingdowntheaircraft? • The right to life can serve as a good argument for the enhanced technologies and methods

15. 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.

16. 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

17. Examplesofrestrictions in theinterestsof «nationalsecurity» • Secure Flight (USA) • Social sorting • Watch lists, blacklists, no-fly lists • Passport control and visa regimes • Traceability techniques • Security requirements

18. 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

19. 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?

20. 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

21. 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)

22. 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)

23. 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

24. 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

25. Data protection • ECHR: extension to the right to privacy • Separate right (Art. 8 of the CFREU, TFEU Art. 16)

26. 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 subjecthas 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

27. Privacy and data protection Privacy Data protection

28. 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

29. Relevant securitymeasures • Metal detectors? - United States v. Epperson (1971) • Hand search? • Body scanners? • Biometrics? • Behavior detection? • Video surveillance and CCTV? • Profiling? • Transfer ofpassenger personal data from airlines? • Trusted Traveler Program, PreCheck?

30. 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 plusprivacy” with privacy being antidote to surveillance

31. Thankyou for yourattention! olga.enerstvedt@jus.uio.no