Post on 24-Feb-2016
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Overview of human rights v. aviation security
Olga Mironenko EnerstvedtNordic Conference in ICT Law, Oslo, 15 November 2013
What is associated with «air passenger rights»?
1. Right to travel2. 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 hourtoday - 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 Pr
ivacy
Data
prot
ectio
n
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