The 10th edition of the Worldwide Airports Lawyers Association (WALA) conference was held in London on 15-17 October 2018. 90+ delegates, representing 35 countries and more than 50 organisations, participated in the event. Diana Stancu Godet travelled to London to participate in the conference and to meet with two of the members of the WALA Board: Diego Gonzales (Aeropuertos Argentina 2000), president of the board and Alan Meneghetti (Katten Muchin Rosenman LLP, UK), secretary of WALA to hear their views on aviation security from an airport legal context.
WALA was established in 2007 with the aim of promoting a worldwide forum in which airport lawyers and other public and private sectors of the aviation industry could develop, share and debate relevant aspects in their field of law.
The 2018 conference covered a wide range of topics linked to airports’ legal aspects but mainly focused on areas such as: innovation and legal readiness for autonomous airports; disruptive technology and the legal answers to it; emerging insurance issues for cybersecurity and terrorism; biometric screening: privacy, accuracy, gender and race issues; airport liability issues; the new EU General Data Protection Regulation.
From an aviation security perspective, I had four key questions:
Diana Stancu Godet: To what extent do you believe that fear of judicial proceedings results in airports/airlines not denying boarding to passengers they think are acting suspiciously?
Diego Gonzales: Civil aviation is a complex industry that includes the intertwining of various activities developed by different actors, whether public or private. Among them, air transportation, airport services and state-controlled activities. Security (AVSEC) is directly related to all of them although there are different levels of liability and actions to be taken.
In this framework, the action of denying boarding is covered by the air transportation contract and, as such, determined by the airline and is not the responsibility of the airport operator. To determine whether a passenger is acting suspiciously, or not, is an action that should be undertaken by duly trained airline staff and the said decision should be well-founded.
In the case of airport operators, to which the State has delegated responsibility for effecting security controls, even though it is not their responsibility to deny – or not – boarding to a passenger, cases may arise in which airport operators identify suspicious actions of passengers, or airport users, and must act accordingly, always taking into account the value of security and following the specific protocols provided.
In both cases – to take action or not in case of suspicious activity – it is part of the duties of both airlines and airport operators, depending on the circumstances in which the suspicious activity arises or is detected, and, thus, they should be prepared to do so.
DSG: As a principle, and taking into account the difficulties of each case, does a fear of facing adverse judicial consequences from claims or complaints made by affected parties impact airlines or airports rights and duties to implement security controls?
Alan Meneghetti: I am not sure that this makes a difference. Security operators at airports are guided primarily – and one would hope exclusively – by the scope of their remit; namely to ensure that the security of an airport and on board an aircraft is protected and maintained.
DSG: What would the legal profession like to see implemented to enhance aviation security?
DG: We believe that promoting a security culture is the proper way to enhance security. This should be understood as something that needs to happen across the board, not only from competent security entities but also from those involved in air transportation, including tourism and consumer protection entities. Regular participation in training activities is essential; there are many forums of national, international, governmental and private organisations that provide training opportunities. WALA is one of them.
AM: More transparency around what personal data is collected and what it is used for. Biometric checks – these are on the increase with the recent announcement that airports such as Shanghai Hongqiao International Airport and Montevideo Carrasco Airport have launched automated security clearance systems using facial recognition, although there is little clarity around the integrity/security of the system or how the relevant data is stored.
DSG: How does the legal profession see the balance between achieving effective security and protection of human rights?
DG: This balance is one of the great challenges of the lawyer’s profession. Whether lawyers work in the public or private sector, it is necessary to promote in depth discussion and analyses of these issues and to seek various ways to ensure that competing rights are balanced or, at least, harmonised, so as to produce equitable and fair legal solutions. It is not only about giving more or less value to security and/or human rights. The challenge is to find the corresponding balance, even though particular local events and situations may make this task difficult.
AM: This is always a fine and changeable line to tread, and what works in one situation, and at a particular time, does not necessarily hold true in other situations and at other times. It is important to recognise the existence of the relevant rights, which are or may potentially be impacted, whilst also maintaining the security and well-being of the aviation sector and those millions of people who use it every day. It is important to recognise that a broad set of guidelines is helpful (indeed essential), but that these are what they say they are, namely guidelines, and that an intelligent and practical application of the guidelines should be applied in all cases. This may, of course, be initially via automated profiling but it is vital to ensure that human intervention (and the ability for human intervention) is permitted and legally required.
Diana Stancu Godet is a member of the editorial advisory board of Aviation Security International and is, herself, a qualified lawyer and a consultant within the aviation security arena.