The Nudatrons* are back in the news again, as the Equality and Human Rights Commission has warned that their use in UK airports may be illegal, with a primary concern about how individuals might be selected for scanning as opposed to a traditional metal detector scan. In response, the government has stated it is carrying out an equalities impact, and the Department for Transport has published an interim Code of Practice for body scanning.
The debate over acceptability of body scanners, which were introduced without public consultation after a passenger’s failed attempt to explode a package hidden in his underpants at the end of last year, has fudged together a number of separate and complex security and privacy issues, including:
- whether security checks should be applied equally to every passenger, or just to a selection of those passengers;
- whether or not it is acceptable to select individuals for security checks based upon their profile (age, gender, ethnicity, religion, behaviour, journey, travel documents);
- whether it is acceptable to scan children or others who might not be able to give valid consent to the process;
- whether individuals should be able to select the primary security check mechanism (scan, pat down);
- which scanning technologies are acceptable for use, and what privacy-enhancing controls might be placed over them.
The acceptability of profiling in this context is a very sensitive issue. Common sense dictates that an elderly lady might be less of a threat than a young man, and therefore less likely to be worthy of a full scan. This enables guards to expedite both her transit through security, and that of the other people who no longer have to wait for her to pass through the scanner. The problem is that the topic is much more subtle than that, and as soon as we introduce ethnicity, religion etc then there is a reasonable likelihood of discrimination issues arising. Some have argued that this could be countered by creating a scanner ‘fast track’ – in other words if a passenger is selected for scanning then they actually transit security faster than others – but that’s not going to solve the problem.
This isn’t an issue that will be resolved easily, and by confusing it with the other points above, everybody loses. The Department for Transport’s interim guidance sidesteps the whole problem by dictating that individuals must be selected at random, rather than as a result of profiling, but then omits to deal with opt-out or privacy-enhancing technologies (PETs):
- it seems reasonable that a passenger should, under the terms of the Data Protection Act, be able to select their preferred primary security check. If a passenger prefers to be scanned rather than patted down, so be it; likewise, if they want a pat-down in place of a scan, that seems reasonable. If guards feel that there is a reason to demand a secondary security check, then of course they should be able to do so. Likewise, if a parent or legal guardian does not wish to have their child scanned, then they should be able to opt out on their behalf.
- scanners are now available with a range of PETs that remove body detail, thus preserving privacy, but the guidance makes no mandate that these technologies should be used in favour of more invasive displays.
With the ever-increasing hysteria about terrorist threats (which will only increase as the 2012 Olympics approach), we are likely to start seeing these scanners outside of airports, and the DfT has a duty to revise its guidance to resolve the issues around opt-out and PETs – there is no reason why that can’t happen immediately. Privacy is essentially resolvable, and should not be mixed up with equality, otherwise both rights are eroded in much the same way that privacy is being eroded when mixed with security needs.
The most important issue upon which we must focus is that of profiling, and this needs a much more informed, facilitated public debate before the equality problems can be properly understood and hence resolved.
* [A term I first heard used by Charlie Brooker]