Civil Liberties & Aviation Security: a contradiction in terms?

Most of us go about our daily lives oblivious of the security measures put in place to protect us and the society we live in. We know, or at least hope, that the security services are doing their utmost to take necessary steps to guard against the next terrorist atrocity. However, when we fly we witness and experience enhanced security measures which in some respects reassure us, yet also force us to consider the degree to which our personal privacy can be invaded in the process; these measures, after all, have a serious impact on issues of fundamental human rights and civil liberties, including the rights to privacy and data protection, freedom of movement, the right to equal treatment and non-discrimination, and freedom of thought, conscience and religion. In January 2017, and in light of the Executive Orders signed by newly elected President Trump limiting the travel of certain people based on their nationality or country of birth, this has become an ever more taxing issue. Olga Enerstvedt questions whether it is possible to satisfy both aviation security requirements and passengers’ civil liberty rights, or whether there is a contradiction between them.

On the one hand, states have a duty to maintain a high level of security, to adopt measures protecting persons, aircraft, airport facilities and other assets from harm. On the other hand, there are various instruments aimed at protecting human rights, and states are obliged to promote, respect, protect and fulfil them.

Balancing or Proportionality Test?
A common suggestion is to find a balance between liberty and security values. In other words, we should use the so-called ‘trade-off model’. In short, it is not possible to place greater emphasis on one of the values without detracting from the other.

However, in balancing terms, civil liberties will always be compromised. It is obvious that security, which is vital to survival, is more important than, for example, privacy, which is a social and political need but is not an immediate matter of survival. Only when security needs are satisfied is it possible to consider needs relating to civil liberties at all.

The balancing concept is subject to criticism; firstly because it justifies the compromises to civil liberties. It is suggested that, instead, the test of proportionality should be used. By using the latter, one can evaluate whether a security measure is suitable, necessary, without any less intrusive alternatives, non-excessive, and so on. Applying these criteria allows us to assess whether the human rights risks caused by this measure are proportionate to its security benefits and other factors.

Civil Liberties Risks
Unfortunately, in an article, one cannot look into civil liberties issues in aviation security in depth. Nevertheless, using the results of my previous extensive research, the risks relating to a number of emerging but increasingly used technologies – body scanners, camera surveillance (CCTV) and Passenger Name Record (PNR) systems – can be summarised in the table (Table 1, facing page).

In brief, to different extents, all of the indicated measures interfere with privacy and raise concerns in respect of a number of data protection principles, such as fair and lawful processing, proportionality, purpose limitation, minimality, and data subject influence.

The right to freedom of movement may suffer as well, in particular with regard to PNR and smart CCTV, if innocent persons are mistakenly stopped, searched and detained, mainly as the result of mistaken inclusion on various watch lists, inaccuracy of facial recognition and behavioural analysis techniques.

All the measures raise concerns with respect to the right to non-discrimination. Body scanners may discriminate against ‘abnormal’ persons and may be used discriminatively if a person is selected by security officers to go through the device or automatically chosen due to specific characteristics. In the case of CCTV, some people are over-scrutinised by either human security staff or by automatic tools. The use of PNR may also involve the use of sensitive data and profiling, which is discriminative by nature.

With regard to the freedom of thought, conscience and religion, all the measures can have a negative impact indirectly, mainly via religion as a criterion for discrimination. Additionally, if smart CCTV detects movements that are quite neutral but are linked to practising a specific faith, but which are deemed suspicious, this can discriminate and disproportionally affect the right to privacy of a specific group of persons.