FP7-SEC-2007-217862

DETECTER

Detection Technologies, Terrorism, Ethics and Human Rights

Collaborative Project

Human Rights Risks of Selected Detection Technologies

Sample Uses by Governments of Selected Detection Technologies

17.1

Due date of deliverable: 30 November 2009Actual submission date: 11 December 2009

Start date of project: 1.12.2008 Duration: 36 months

Work Package number and lead: WP09, Professor Geir Ulfstein

Author(s): Rozemarijn van der Hilst

Draft V.0.5 FINAL

Project co-funded by the European Commission within the Seventh Framework Programme (2002-2006)PU

PU Public XPP Restricted to other programme participants (including the Commission Services)RE Restricted to a group specified by the consortium (including the Commission

Services)COConfidential, only for members of the consortium (including the Commission Services)

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Executive Summary

1. Intelligence is a vital element in successful counter-terrorism. There is rapid development in detection technologies that aid in the gathering of information. However, there are concerns over the privacy intrusion these detection technologies cause.

2. Privacy is important for individual well-being, as well as the proper functioning of a democratic society. The right to privacy is vested in different national, European and International laws, which prescribe that the right to privacy may only be limited by measures that have a sound legal basis and are necessary in a democratic society for the protection of national security.

3. From the legal and moral framework around privacy it emerges that detection technologies used in counter-terrorism should take account of: legitimacy, proportionality, necessity, transparency, factors concerning the person targeted, the sensitivity of the data sought, the effectiveness, the possibility of function creep and the extent to which PET’s are implemented.

4. Privacy concerns arise with the widespread and indiscriminate use of communication surveillance; the covert use of CCTV technology; the sensitivity of biometric data; and the ineffectiveness (and therefore disproportionateness) of data mining and analysis and decision support technologies.

5. There are also risks inherent to the use of detection technologies in general. The use of detection technologies can have a ‘chilling effect’ and can be ineffective due to the huge amount of gathered data. However, positive effects of the use of detection technologies are the ability to detect and therefore prevent terrorist attacks and the deterrent effect they have.

6. Detection technologies should be used, provided that their authorization is based on legislation that protects against abuse and presents fair consideration to the proportionality and necessity of the aim pursued. The ultimate assessment of the threat detection technologies pose to privacy depends on the actual usage of the technologies.

Human rights risks of selected detection technologies, sample uses by governments of selected detection technologies1

IntroductionWhen I arrived at Birmingham International Airport recently, I was asked to go through an automated border control. Instead of handing my passport over to the authorities, I now had to: swipe my machine readable passport through a scanner; wait for sliding doors to be opened; step on a pair of footsteps painted on the floor; look in the direction of a camera hidden in a glass shoebox; and again wait until the next set of doors were opened.Though the process was efficient, all the while I was thinking: what information did that machine read from my passport? What if the camera doesn’t recognize my face? Does the camera take a

1 This paper has benefitted greatly from feedback and comments by Prof. Tom Sorell, Dr. Daniel Moeckli, Mathias Vermeulen, James Thurman and Dr. Birgitte Kofod Olsen.

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picture? Is the image saved? Is the information from my passport stored? For what purpose would such information be kept and for how long? Who has access to that information? But most importantly: why, and should I care?

Due to increased awareness of the threat of terrorist attacks since the events on 9/11/2001 in the U.S. and in Madrid (2004) and London (2007), governments are going to great lengths to protect their citizens from terrorist attacks. The measures range from tighter border control at airports with increased passenger and baggage screening, to the surveillance of events attended by great numbers of people, to the interception of communications. According to Richard English, the most vital element in successful counter-terrorism is intelligence.2 In order to be effective in their intelligence gathering efforts, governments have a plurality of detection technologies at their disposal. These technologies help authorities to answer the questions: who and where are the terrorists?

However, the use of these technologies is not uncontroversial. Some fear that the increased possibilities for states to place their citizens under surveillance, interfere with the right to privacy. 3 Others are concerned that certain groups may be disproportionally subject to surveillance, which violates the right to non-discrimination.4 The EU Commission stated in its Green Paper on detection technologies that a general overview on the rapid developments in this particular field of counter terrorism is lacking. 5 This paper aims to fill that lacuna. It does not, however, claim to be comprehensive. It merely presents an overview of technologies currently in use or in development, and begins to assess their potential threats to the right to privacy.6

The first part of this paper briefly addresses the legal and ethical issues that arise from the use of detection technologies. It also sketches the legal framework associated with the right to privacy. The theoretical framework will be further elaborated in later DETECTER deliverables.The second part offers an overview of technologies in use and concerns that may arise from using them. The final part gives some preliminary conclusions on the risk some of these technologies may pose to human rights and formulates the questions that will guide the rest of the research in WP09.

This paper fits within the DETECTER deliverables as follows: It provides a brief but general overview of detection technologies used in counter-terrorism efforts. The preliminary findings of this paper will subsequently be used as a starting point for a more extensive literature review and review of technology trade catalogues. This will lead up to the topic guide for the interviews with government

2 Richard English, Terrorism, How to respond, Oxford University Press, 2009 p. 131.3 Privacy International, Overview, Increased Abuse of Data and Disregard for Protection, 9 August 2004, published on http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-65430&als[theme]=AT%20Enhanced%20Surveillance last visited 22 November 2009. And, Human Rights Watch, UK: ‘Control Orders’ for Terrorism Suspects Violates Rights, 2 March 2009, published on http://www.hrw.org/en/news/2009/03/01/uk-control-orders-terrorism-suspects-violate-rights last visited 22 November 2009.4 Daniel Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’ Oxford University Press, 2008. 5 Commission of the European Communities Green Paper on detection technologies in the work of law enforcement, customs and other security authorities. COM (2006) 474 Final, Brussels 1.9.2006. 6 This paper does not address the right to non-discrimination. For a comprehensive reading on this topic, see Daniel Moeckli’s monograph Human Rights and Non-discrimination in the ‘War on Terror’ Oxford University Press, 2008.

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officials on the use and effectiveness of these technologies (Deliverable 17.2.). In later stages of the project, the findings of this deliverable, when combined with the interviews, will lead to an evaluation of the risks these technologies pose to human rights, such as the right to privacy (deliverable 17.3). The final stage of this project focuses on creating a ranking of risks posed by technologies (Deliverable 17.4). This could assist a government in its choice of detection technologies.

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Part I Legal and ethical matters

Why need we be bothered by measures which are there to protect national security? After all, they contribute to protecting some our most fundamental human rights: the right to life. The answer is that other rights are affected by counter-terrorism. Though the use of special investigation techniques may aid in detecting terrorists and their plans, special investigation could threaten privacy.

PrivacyBut what is privacy and why is it important? Looking at the Greek root of the word, it refers to being deprived of something essential, which according to the ancient Greeks was taking part in society. 7 In modern times, privacy means the ability to seclude oneself or information about oneself so as to reveal oneself selectively. It describes a sphere in which a person can decide about matters he does not want to share with others, where one determines a way of life that reflects one’s own attitudes, values, tastes and preferences. The private sphere is one where a person can establish intimate relations with a lover, family or friends. Private life is where one leaves the public sphere behind and be alone or with a selected group of others.8 It has also been termed ‘the right to be left alone’.9

Informational Privacy A newer concept of privacy is ‘informational privacy’. Alan Westin formulated it as the ‘claim of individuals to determine for themselves when, how and to what extent information about them is communicated to others’.10 Arthur Miller understands informational privacy as the individual’s ability to control the circulation of information about them.11

The link between privacy and the concept of data protection centres on a distinction between types of data. What kind of data is private is not easy to determine. An important aspect is the ‘identifiability’ of the data, meaning the extent to which a person can be uniquely identified by a set of data.12 Not every piece of information about a person constitutes this type of ‘personal data’. However, by combining different pieces of data, that set can become identifying, which makes all data linked to a person potentially ‘personal data’.

The Value of Privacy

7 Margaret Canovan, The political thought of Hannah Arendt, 1977 p.62, quoted in Daniel J. Solove, Understanding Privacy, Harvard University Press, 2008, p. 80.8 Walter Kalin, Jorg Kunzli, The Law of International Human Rights Protection, Oxford University Press, 2009, p. 381. 9 Supreme Court Justice Louis D. Brandeis 1928. 10 Alan F Westin, Privacy and Freedom, New York Atheneum 1967 as quoted in Irma van der Ploeg, The Machine Readable body, Essays on biometrics and the informatization of the body, Shaker Publishing 2005 p. 21.11 Arthur Miller, The Assault on Privacy, Cambridge, Harvard University Press 1971 as quoted in Irma van der Ploeg, The Machine Readable body, Essays on biometrics and the informatization of the body, Shaker Publishing 2005 p. 21.12 Irma van der Ploeg, The Machine Readable body, Essays on biometrics and the informatization of the body, Shaker Publishing 2005 p. 21.

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There are several arguments for regarding privacy as a ‘good’ thing. 13 Privacy promotes psychological well-being, as it allows people to be relieved of the tension inherent to the conduct of social relations.14 Privacy is also thought to enable expression of selfhood, the development of one’s self and to create a sphere for building intimate relationships. These arguments are quite individualistic. But privacy also has communal value: “Privacy permits individuals to contemplate and discuss political change, create counterculture, or engage in meaningful critique of society.”15

Though the positive aspects of privacy are numerous, ‘privacy’ also has negative connotations. Privacy has been viewed as a threat to the community and to solidarity. Privacy limits a society’s ability to detect and punish disobedience, which makes it harder to enforce laws and norms. Moreover, privacy can make it difficult to establish trust and judge people’s reputations. Furthermore, the precise positive value of privacy may be called into question in a society where social networking sites, blogging and twittering are commonplace.

Intrinsic and Instrumental Value of PrivacySome theorists claim that privacy has value in itself.16 According to Dworkin, certain things “are valuable in themselves and not just for their utility or for the pleasure or satisfaction they bring us.”17

The problem with the intrinsic value approach is that it doesn’t answer the question why something is important. Following Solove’s pragmatic approach, it can be said that privacy has a social value and that its importance emerges from the benefits it confers upon society. This represents privacy’s instrumental value: The value of privacy emerges from the other rights it furthers. Because privacy is protected, people can enjoy free speech, enjoy freedom of association and enjoy living in a functioning democracy.

Balancing?A consequence of the pragmatic view for the instrumental value of privacy is that privacy should be weighed against competing values, and it should win only when it produces the best outcome for society. However, balancing requires that all interests are comparable. Values such as privacy and security are difficult to compare. Especially since the value of privacy is not the same in each and every context. If the value of privacy is only viewed in individualistic terms, privacy easily gets undervalued vis-à-vis more societal concepts such as security.18 By considering that privacy is valuable not only for our personal lives, but for our lives as citizens participating in public life and the community, we assess the value of privacy on the basis of its contributions to society. This may result in the proper appreciation of its value.

Privacy Protection

13 For a comprehensive reading on the value of privacy, see Daniel J. Solove, Understanding Privacy, Cambridge, Harvard University Press, 2008.14 Daniel J. Solove, Understanding Privacy, Cambridge, Harvard University Press, 2008. p.79.15 Ibid. p.80. 16 Ibid. p.84. 17 Ronald Dworkin, Life’s Dominion, Vintage Books, New York 1994 pp.71-72 cf. pp.76-77.18 This assumption can be challenged for societies that are considered more individualistic. An example could be the US where public opinion may favour individual rights (see for example the large numbers of members of the National Rifle Association, but where the government favours collective security (see for example the Patriot Act).

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Because of the importance of the right to privacy, it is protected in numerous ways. On the international level there are human rights treaties and covenants19 that guarantee the right to privacy, and at the national level many states have incorporated the right to privacy in their constitution.20

EU legislationAt the European Union level, legislation to protect privacy is developing at rapid speed. The European Directive 95/46/EC regulates the issue of privacy in connection with processing personal data. It sets out the general principles of data protection, and reiterates the principles set forth by the Organisation for Economic Cooperation and Development (OECD) in its Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (1980). However, OECD Guidelines are not legally binding, and Article 3, paragraph 2 of the EU Directive explicitly mentions that the Directive does not apply to activities that relate to ‘common foreign and security policy’ or to ‘police and judicial cooperation in criminal matters’ (EU’s former Third Pillar). Yet counter-terrorism measures clearly fall under that category.21

On 27 November 2008, the Council adopted Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.22 The Framework Decision incorporates principles similar to the EU Directive and the even earlier OECD guidelines. It specifies the circumstances under which personal data23 may be processed24 for the purpose of fighting serious crime, including terrorism. The three most important principles are: Legitimacy, necessity and that gathering of information is purpose binding. These principles are articulated in Art. 3 1:

Personal data may be collected by the competent authorities only for specified, explicit and legitimate purposes in the framework of their tasks and may be processed only for the same

19 Art 17 International Covenant on Civil and Political Rights, Art. 8 European Convention on Human Rights.20 For example, the Dutch Constitution stipulates in art 10 that everyone has the right to respect for his private life. Reference is being made to Article 8 of the ECHR. 21 In Ireland v. Parliament and Council C-301706, the ECJ decided on the boundary between measures coming under the Community Pillar and those which must be adopted within the framework of title VI of the EU Treaty. It was concluded that art. 95 of the EC Treaty was the correct legal basis for the data retention and Ireland’s action for annulment should therefore be dismissed. 22 After the entry into force of the Lisbon Treaty on 1 December 2009, EU measures concerning policing and criminal law will take the form of Regulations and Directives, subject to EU law (direct effect and supremacy) and the normal jurisdiction of the EU Court of Justice. However, Third pillar measures adopted prior to the entry into force of the Treaty of Lisbon, such as the Framework Decision, will be guarded by the ‘transitional protocol’, which entails firstly a five-year transitional period relating to the Court of Justice jurisdiction (meaning no infringements actions, and references only from the national courts), and secondly, that the old rules on the legal effect of third pillar measures (meaning no direct effect) apply indefinitely. 23 ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’), an identifiable person is one who can be identified, directly or indirectly, in particular reference to an identification number or to one or more factors specific to his physical, physiological, mental economic, cultural or social identity. Art. 2(a) Framework Decision 2008/977/JHA. 24 ‘processing of personal data’ and ‘processing’ mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Art. 2(b) Framework Decision 2008/977/JHA.

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purpose for which data was collected. Processing of the data shall be lawful and adequate, relevant and not excessive in relation to the purposes for which they are collected.

Necessity is mentioned in Art. 3 2 (c): Processing of the data shall be lawful and adequate, relevant and not excessive in relation to the purpose for which they are collected.

Other important principles are: Transparency: Member States shall ensure that the data subject is informed regarding the collection or processing of personal data by their competent authorities, in accordance with national law. (Art. 16.1.)

Quality of the Data: Personal data shall be rectified if inaccurate and, where this is possible and necessary, completed or updated. (Art 4.1). Furthermore, art. 8 stipulates that the competent authorities shall take all reasonable steps to provide that personal data which are inaccurate, incomplete or no longer up to date are not transmitted or made available.

Security of the data: Member States shall provide that the competent authorities must implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.

The Charter of Fundamental Rights of the European UnionThe EU Charter of Fundamental Rights was prepared in 2000 and became legally binding with the entry into force of the Lisbon Treaty 1 December 2009. Anticipating the concerns over the increased processing of data, it establishes a separate fundamental right for the protection of personal data from the more general right to privacy. This is a novelty in human rights and privacy protection. 25 The correct application of the Charter will be ensured by the European Court of Justice.

The Council of EuropeThe European Convention on Human RightsPerhaps the widest, yet also most individual, protection of the right to privacy is vested in the European Convention on Human Rights26. Article 8 ECHR states:

Everyone has the right to respect for his private and family life, his home and his correspondence.

It is not an absolute right; it is qualified in the limitation clause in paragraph 2 of art. 8: There shall be no interference by a public authority with the exercise of the right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

25 Commentary of the Charter of Fundamental Rights of the European Union, June 2006.26 Council of Europe, European Convention on Human Rights, Rome 4 November 1950.

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The European Court of Human Rights has interpreted this right in relation to counter-terrorism measures. It has developed some guidelines for determining whether a state has unduly limited the right.The Court first decides whether the measure actually amounts to an interference with the right to privacy. If the interference is grave enough, the Court considers whether this interference was permitted. In order to determine this, two conditions must be met:

1) The measure must be based on a national law.2) The measure must be ‘necessary in a democratic society’.

In practice this means that the Court examines the quality of the national law, and considers whether the national law provides enough safeguards against abuse. An important requirement the Court imposes on the national law is the foreseeability of who may be subject to surveillance and under what circumstances.27

If the Court finds that the first condition has not been met, it omits to examine the second part of the cumulative test: the question is whether the measure is necessary in a democratic society for the protection of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. However, it is argued that also in cases where there is a sufficient basis in national law, the Court often does not address this very relevant question28 and does not examine the proportionality of the measure: Does the benefit reaped by imposing the measure outweigh the drawbacks? And which values should be considered, when considering what balance is to be struck?The Court does not provide clear answers in this regard29. It merely assesses procedural safeguards against abuse and further leaves it to the state to make the right assessment on the threat to its security and the appropriateness of the measures to counter it.30

The Committee of MinistersIn addition to the European Court of Human Rights, the Committee of Ministers of the Council of Europe also interprets the Convention and gives recommendations about the practical application of the protection of human rights in a specific context. Convention 108 for the protection of Individuals with regard to Automatic Processing of Personal Data (1981) contains another privacy protection by the Council of Europe. However, as pointed out

27 The Court notes that foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risk of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures. Decision as to the admissibility fo application no. 54934/00 Weber and Saravia 29 June 2006. 28 Stefan Sottiaux, Terrorism and the Limitation of Rights, the ECHR and the US Constitution, Hart Publishing, Oxford 2008, p.27629 Only in one case concerning wiretapping the Court reached the question of necessity. By assessing whether the measures were surrounded by ‘efficient control’. Lambert v. France Reports 1998 V (1998)30 Only in cases where the interference is abundantly disproportionate, the Court has found a violation of art. 8. Such as in Klass v. Germany European Court of Human Rights Series A no. 28 1979-80, 6 September 1978.

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by the European Data Protection Authorities, this Convention “is too general to effectively safeguard data protection in the area of law enforcement…”31

A more particular protection mechanism is expressed in the Committee of Ministers Recommendation (2005) 10 on “special investigation techniques” in relation to serious crimes including acts of terrorism. Though the recommendation is not legally binding, it does reflect a consensus among European ministers as to how to deal with the use of detection technologies, while also preserving the right to privacy. Besides upholding the general principles enshrined in the ECHR, the Recommendation states that “the use of special investigation techniques should be appropriate for efficient criminal investigation and prosecution.”32 It furthermore states that “the use of special investigation techniques is conditional upon a sufficient reason to believe that a serious crime is being committed or prepared, by one or more persons or an as-yet-unidentified individuals or group of individuals.”33 This is an important principle: it allows the use of special investigation techniques against persons who were not previously suspects in a criminal investigation. This widens the target group significantly.As Deliverable 5.1 shows, the approach taken by the Committee of Ministers’ recommendation (2005) 10 generally fits within liberal theory. However, surveillance for the prevention of crime is permissible provided that choice of the subject of surveillance is evidence-based, and not, as point 4 of the recommendation suggests an unidentified person.34

Factors to considerThese legal protections for privacy point to aspects of detection technologies that are relevant to ethics and human rights.

Legitimate aim, Proportionality and NecessityFrom the principles articulated in the Framework Decision and from the interpretation of art. 8 it becomes clear that the following factors are of relevance when assessing a technology’s impact on privacy: Legitimate aim; does the detection technology pursue a legitimate aim? And is this provided for by a sound national law? In this paper, it is assumed that the detection of terrorists and their whereabouts is indeed a legitimate aim.35

More interesting to discuss is whether the technology fulfils the requirements of proportionality, necessity and subsidiarity. In other words, could the same goal be reached by means that cause less intrusion? Is the loss of civil liberty proportionate to the gain in security?36

31 Declaration of the European Data Protection Authorities, Spring Conference of the European Data Protection Authorities, Krakow, 25-26 April 2005, quoted in Data protection in the third pillar: in the aftermath of the ECJ decision on PNR data and the data retention directive, Eleni Kosta, Fanny Coudert and Prof. Jos Dumortier, BILETA 2007 Annual Conference, Hertfordshire 16-17 April. 32 Recommendation Rec(2005) 10 of the Committee of Ministers to member states on “special investigation techniques” in relation to serious crimes including acts of terrorism, point 2, emphasis added.33 Rec (2005) 10, point 4, emphasis added.34 Deliverable 5.1 Moral risks of Preventive Policing in Counterterrorism, point 3 executive summary.35 Due to the limited scope of this paper, the assessment of whether or not a sound national law is in place is omitted. Other DETECTER deliverables will address this issue in more depth.36 According to the authors of ‘Counter-terrorism law and practice: an international handbook’ the proportionality of a covert technique should be considered in light of the following:

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Proportionality might depend on how transparent the use of the technology is. Transparency implies that potential data subjects are informed about the use of detection technologies in certain areas either through signage or the unconcealed placement of the camera. Though knowingly subjecting oneself to such surveillance does not imply consent in the sense of approval, the transparent use of the technology gives the potential data subject some level of choice whether or not to enter that area and thereby subject themselves to surveillance.

Target groupBesides strictly legal factors, liberal theory could be used to identify other factors to consider. Following the arguments presented in Deliverable 5.1, another important factor that should be considered is whether the decision to employ a detection technology on a specific person or group of persons is evidence-based. In other words, it is important to consider who is targeted by the detection technology and for what reason. Preventive policing, investigating offences before they are being committed, can be targeted against persons against whom there are reasonable grounds to believe that he/she is involved in terrorist activities. However, preventive policing, which imposes surveillance on large groups of persons against whom there is no concrete evidence, is questionable.

‘Personal’ dataDetection technologies gather data, but what kind of data is collected and what is done with it?The notion of privacy as informational privacy gives rise to the question what kind of intelligence is sought, and whether the combined data uniquely identifies one person. It is important to distinguish what kind of data is gathered and whether this data was voluntarily made public e.g. pictures posted on public social network website can (depending on the use of built-in access restrictions) not be expected to be considered private.

Efficiency and EffectivenessFollowing the Committee of Ministers’ Recommendation, which stated that special investigation techniques should be used for the efficient investigation and prosecution of crime, another relevant factor is the effectiveness of a technology. It could be argued that a highly efficient detection technology, with a high accuracy rate is more proportionate. The interference with privacy may be substantial, but it may be outweighed by the fact that the technology indeed generates excellent results in gathering information about terrorists at low costs.37 An important factor to consider is the ratio between false positives and false negatives. A false positive is when the system identifies a terrorist plot that really isn’t one. A false negative is when the system misses an actual terrorist suspect or plot. Depending on how detection algorithms are set up, one can err on one side or the other: increase the number of false positives to ensure one is less

Have sufficient, relevant reasons been set out in support of the deployment? Could the same aim have been achieved by use of a less intrusive method? Did the authorizing/decision-making process as to the deployment take place in a way which was procedurally fair? Do adequate safeguards exist to prevent abuse? Does the interference in question destroy the very essence of the right to a private/personal life? Arvinder Sambei, Anton du Plessis and Martin Polaine, Counter-Terrorism Law and Practice: an international handbook, Oxford University Press, 2009, p. 372 no. 8.120. Though these questions are a good starting point, it fails to address two other important principles, such as transparency and the quality and the security of data.37 For the purpose of this paper, this indicator will only be marginally reviewed. Deliverable 17.2 will map the efficiency and effectiveness of selected detection technologies based on interviews with operators.

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likely to miss an actual terrorist plot, or reduce the number of false positives at the expense of missing terrorist plots.

Function and Mission creepHow likely is it that the technology will be used for other purposes than originally intended, and permitted by law? This could either be through misuse by its operator, or through function creep. Function Creep describes the phenomenon of intelligence being gathered for a specific (legitimate) purpose, while over time being used for other purposes.38

Privacy Enhancing Technologies (PET’s)Some technologies can with a modification become more protective of privacy. Collected data can be placed in secure locations, with passwords, and with limited access. Another PET could be a software application that anonymizes the data. For the review of detection technologies it is therefore important to consider the extent to which PET’s are implemented or offered with the detection technologies.

38 Persoonsinformatie of Identiteit, identiteitsvaststelling en elektronishe dossies in het licht van maatschappelijke en technologische ontwikkelingen. Telematica Instituut for the Dutch Ministry of the Interior and Kingdom Relations, TI/RS/2008/034 p.82.

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Part II Technologies

Definition For the purpose of this paper the definition of detection technologies is derived from the Commissions’ Green Paper: “A detection technology can be almost anything used to detect something in a security context, with the focus on law enforcement, customs or security authority.”39 There are several categories: Hand-held detectors, detection portals, surveillance solutions, detection of biometrics, data-and text-mining tools, and other software-based detection tools.40

The classification of the technologies requires reflection. They could be presented by the object they detect, their technological features or by the potential harm they cause. Each classification has its merits. This paper follows the categorization of detection technologies according to the technology model presented by the PRISE project.41 It recognizes four basic technologies: Communication Technology, Sensors, Data Storage and Analysis and Decision Support. As becomes clear in the PRISE report, Data storage and Decision Support technologies are closely linked. In this paper, these categories will therefore be merged. The PRISE categorization is based on the idea that most applications draw on many different basic technologies and in doing so inherit the risks associated with the basic technologies.42

The technologies presented in each category are typical examples of the basic technology. The last part considers general risks associated with detection technologies not attributable to one specific basic technology. Communication technologyThough technologies to monitor communications have improved rapidly, they have been in use for decades. It is necessary to differentiate between the different forms of surveillance of telecommunications. The procedures to install interception of communications, i.e. the content of conversations, differ from country to country, though it can be said that this technology is widely used in the EU. According to the Max Planck Institute Italy leads the way in the number of intercepted phone calls, with 76 intercepts per 100.000 of the population. By comparison:

1. Italy 762. Netherlands 623. Sweden 334. Germany 23,55. England and Wales 643

The use of interception of communication raises concerns. In the UK, the Interception of Communications Commissioner found that 4000 errors were made between 2005 and 2006. Most

39 Commission Green Paper on detection technologies in the work of law enforcement, customs and other security authorities p. 19.40 The commission issued this as a non-exhaustive list of categories. 41 Privacy Security, Deliverable 2.2 Overview of Security Technologies v.1.1 p.9. the DETECTER project develops the categorization further in the Quarterly Update on Technology, Deliverable D 12.2.3.42 The Quarterly Update on Technology, Deliverable 12.2.3 of the DETECTER project further elaborates the categorization of detection technologies. 43 ‘The most spied upon people in Europe’, BBC News, published 2008/02/28, http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/7265212.stm, last visited 22 November 2009.

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errors concerned inappropriate requests to obtain lists of telephone calls and individual email addresses, but 67 mistakes led to the direct interception of communications.44 In Italy, the phone conversations of former governor of the Bank of Italy, Antonio Fazio, were intercepted. The content of some of those conversations concerning a commercial take-over were leaked, leading to a scandal that forced Mr. Fazio to resign.

Unlike those of most EU countries, Greece’s Constitution renders the secrecy of letters and all other forms of free correspondence or communication absolutely inviolable. This is strictly enforced by the Greek Data Protection Authorities.45

In Norway, a recent evaluation of investigation methods found that in cases where interception of communication is used, in 45 percent of the cases this investigative method is of significance in solving the case. However, the report also notes that communications surveillance relatively often captures conversations of a private nature that are of no significance for the investigation of a case. However, the Evaluation Committee is assured by the safeguards provided by the oversight system consisting of the Communications Surveillance Oversight Committee and the Norwegian Parliamentary Intelligence Oversight Committee.46

The use of surveillance of communications is a popular method for intelligence-gathering in counter-terrorism. However its covert and widespread use on persons on whom no concrete suspicion rests raises the question of its proportionality. Furthermore, recent developments in technologies that avoid interception, such as the Secuvoice micro SD card developed by Secusmart,47 require constant adaptation and innovation to make this technology a successful tool in counter-terrorism. Again, further research into the exact effect, the safeguards and function creep is necessary to determine whether the continuing increase of the use of this detection technology is legitimate.

SensorsA sensor is a device that converts a property of the physical world into an electric signal. The technology is widely used for applications ranging from Closed Circuit Television (CCTV), to readers for ID Cards. A specific subset of sensor technology is biometric technology. In the following paragraphs both traditional technologies such as camera surveillance and developing technologies such as body scanners will be discussed.

Camera Surveillance

44 http://www.official-documents.gov.uk/document/hc0607/hc03/0315/0315.pdf.45 In December 2006, the authority fined mobile phone company Vodafone for 76 million Euros for bugging more than 100 top Greek officials, including Prime Minister Costas Karamanlis around the time of the Olympics. In ‘The most spied upon people in Europe’, BBC News, published 2008/02/28, http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/7265212.stm, last visited 22 November 2009.46 Norges offentlige utredninger 2009:15, Skjult informasjon – åpen kontroll, Metodekontrollutvalgets evaluering av lovgivningen om politiets bruk av skjulte tvangsmidles og behandling av informasjon i straffesaker. P.33.47 Secure Conversations, in High Tech Security Solutions Journal, http://hitechsecuritysolutions.co.za/news.aspx?pklNewsId=33208&pklCategoryID=12, last visited 22 November 2009.

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Camera surveillance seems to be everywhere, but closer observation leads to the conclusion that its use varies significantly across Europe. With the UK topping the list with 9000 cameras in the London public transport system alone, France comes second with 6500 cameras in Parisian public transport, and in total 340,000 authorized cameras in France. In contrast, Denmark restricts general CCTV monitoring by preventing the installation of CCTV cameras in public areas that would allow the identification of individuals or groups. The installation of CCTV cameras in shops however is permitted. The quality of CCTV surveillance has developed rapidly. One of the latest systems in use is the Navtech-Ganz48 system which automatically detects, tracks, and records people as they enter a specified zone. The system keeps them under surveillance as they move about. With its built-in wipers it can operate in all weather conditions and delivers crisp, clear images. The effective detection of terrorists largely depends on the quality of the image. Enhanced cameras can therefore be regarded to be more effective and therefore also more likely to be proportionate. In contrast, the better quality of the image is a negative determinant for the installation of cameras in Denmark. When discussing CCTV surveillance, a distinction should be made between overt and covert use. In public areas, the transparent use of CCTV is generally accepted. Problems arise where CCTV is unannounced or directed at private areas. In Norway, as in most European countries, surveillance directed at a private location from a public location is allowed49 on the grounds that it is no worse than looking through a window, which in itself does not violate privacy. However, the newest cameras are able to see more than just the naked eye. This fact may threaten the distinction between “public” and “private” areas. An example of the latest technological developments in camera surveillance is the new adaptable infrared illuminators supplied by CBC. The IR500/2060 model provides night time illumination of up to 100 metres.50 This piece of equipment would be able to see far more than the naked eye and is therefore not equal to ‘looking through a window’. It is therefore prone to interfere with privacy.

Besides privacy concerns, real time monitoring of CCTV by the police gives rise to another legal problem. Through real time monitoring, the police now have knowledge of unfolding illegal events. This raises the question of liability. With knowledge of occurring illegal conduct, the police has a duty to respond to stop such conduct. Moreover, it has a duty to respond adequately to protect citizens from harm. The police could subsequently be held liable for inadequate response and the harm suffered therefrom.

Sensor Technology under development Within the Seventh Framework Program’s security call, numerous technologies are being developed to aid in counter-terrorism efforts. The Automatic Detection of Abnormal Behaviour and Threats (ADABTS), Security of Aircraft in the Future European Environment (SAFEE) and iDectect 4ALL are examples of technologies using sensor technology.

48 CCTV you cannot slip past in High Tech Security Solutions Journal, August 2009, http://hitechsecuritysolutions.co.za/news.aspx?pklNewsId=33208&pklCategoryID=12, last visited 22 November 2009.49 Norges offentlige utredninger 2009:15, Skjult informasjon – åpen kontroll, Metodekontrollutvalgets evaluering av lovgivningen om politiets bruk av skjulte tvangsmidles og behandling av informasjon i straffesaker. P.37.50 www.cbc-sa-com.

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Automatic Detection of Abnormal Behaviour and Threats (ADABTS)Within the seventh Framework Program, Automatic Detection of Abnormal Behaviour and Threats in crowded spaces (ADABTS) aims to develop models for abnormal behaviour and threat behaviours and algorithms for automatic detection of such behaviours as well as deviations from normal behaviour in surveillance data. According to ADABTS’ work description, it will “create models of behaviour that can be used to describe behaviours to be detected and how they can be observed. Such models will enable the prediction of the evolution of behaviour; so that potentially threatening behaviour can be detected as it unfolds, thus enabling pro-active surveillance.” ADABTS further promises that based on video and acoustic sensors coupled with specific algorithms, it will be able to detect the presence of the (potentially) threatening behaviour and to detect behaviour that is not considered normal.51

Depending on whether this technology is used in public or in private spaces, and on which legal basis, the privacy impact of this technology may be comparable with normal CCTV. However, as long as there is a privacy impact, an assessment of proportionality is needed. One way of determining how proportionate a detection technology is, is by considering how effective the technology is compared with the intrusion it causes. And this is where there might be reason for concern. The project is based on the assumption that terrorists behave abnormally. However, looking at perpetrators of recent terrorist attacks, it can be concluded that the majority of them seemed quite ‘normal’. To determine what ‘abnormal behaviour’ looks like seems like a challenging task. To translate that behaviour in an algorithm that, with accuracy, can distinct between an anxious an agitated ‘normal’ person, or an agitated terrorist, seems beyond challenging. The accuracy of such technology is however of great importance in determining how useful and thereby proportionate it is. The possibilities of innocent people being falsely indicated as terrorists (false-positives) should be minimal in order to diminish the impact on privacy. While at the same time, the margin of ‘abnormality’ should be wide enough to detect all possible terrorists, including the ones that may look ‘normal’.

Security of Aircraft in the Future European Environment (SAFEE)A similar project, SAFEE, develops a detection device to detect unlawful interference onboard aircrafts. The project’s baseline is the assumption that, as past experiences have shown, upstream identification control and airport specific security may have all been completed, but terrorist may still slip through. The project is focused on the implementation of a wide spectrum of threat sensing systems, and the corresponding response actions against physical persons or electronic intruders. The project entails five components starting with onboard camera surveillance that monitors all passengers and reads their facial expressions in order to detect ‘abnormal’ behaviour that could indicate a terrorist. The other components consist of threat assessments and automated decision making on diverting the plane from its original route.52

Similar to the ADABTS project, SAFEE works from the assumption that an algorithm can distinguish the nervousness of a passenger who is afraid of flying from the nervousness of a terrorist about to attack an aircraft. As described above, this in itself is a challenging task. Moreover, SAFEE attaches great consequences to this less than optimal identification of terrorist threats by basing automated

51 http://cordis.europa.eu/. 52 http://www.safee.reading.ac.uk.

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decision making on this identification. The practical application of this technology is therefore uncertain, and it’s proportionality to the right to privacy questionable.

iDetect 4ALLAnother Seventh Framework Program project, iDetecT 4ALL, aims at bringing sensor technology to a higher level. Its goal is to develop innovative optical intruder sensing and authentication technologies that will significantly improve security systems performance, available at an affordable cost, leading to the widespread availability of affordable security, allowing more protection for infrastructures. It will develop a novel phonetic sensing technology that allows both detection and authentication of objects by a single sensor, which, according to iDetecT 4 All, dramatically improves the performance reliability of the security system.53

This technology is aimed at detecting intruders. Only those who illegally enter premises equipped with this technology are likely to be subject to this kind of surveillance. The transparency of the use of this technology would be greatly enhanced by a mandatory notification on the premises that this technology is in operation there. It would then provide people with the choice of whether or not to enter those premises. In addition, it is relevant what data will be registered, if any at all. As a recent complaint to the Dutch national ombudsman illustrates, intruders also have some right to privacy. A complaint was filed by the Federation of Law Violators arguing that the police violated the right to privacy of one of the Federation’s members by posting surveillance images on the internet showing a man intrude and search a private living room. According to the Federation, the intruder could not have known that he was being filmed, and thereby the principle of transparency was not adhered to. Such surveillance material may only be made public in the interest of the investigation and with the authorisation of a prosecutor. Though both requirements were met, the Federation deemed it necessary to file a complaint to demonstrate the growing concerns about privacy.54 This case illustrates the importance of the principle of transparency.

BiometricsBiometric technology is a subset of sensors which uses body parts and features to identify people and authenticate that they are who they say they are. This makes the technology interesting for identity control and security checks.

Biometric PassportWithin the EU it has been agreed that passports should include an RFID-chip containing, besides the regular personal data, a picture and fingerprints of both index fingers. There are several concerns about this technology. Firstly, the essence of RFID technology involves the quick transmission of information over a wireless connection, by holding the chip close to a reader. However, RFID readers are easily obtainable and it is therefore possible that someone other than passport control personnel could covertly read passports. Although it is said that the chip contains several safeguards against hacking and the unauthorized reading of data on the chip, a team from

53 http://www.idetect4all.com. 54 ‘Camera in woning schendt privacy insluiper’ De Telegraaf, 24 October 2009, http://www.telegraaf.nl/binnenland/5149058/___Camera_schendt_privacy_insluiper___.html.

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Radboud University and Lausitz University proved how easy it is to remotely detect the presence of a passport and determine its nationality.55

Secondly, the chip has room to store much more data. Though not currently planned, this could in the future be used to store additional personal data such as whether or not a person has outstanding tax payments.

Thirdly, the EU’s own Data Protection Supervisor, Peter Hustinx, has pointed out that in 2 to 3 percent of the passports, there is something wrong with the biometric data.56 This could lead to mistaken identities and other mix-ups in which people can be denied admission to planes or access to services.

Despite these concerns, the Netherlands started taking fingerprints for new passports in September 2009. In October 2009, the UK awarded Sagem Securite with a contract to supply and maintain a biometric management solution for British travel and identity documents.

Body ScanAnother application of biometric technology is for the screening of passengers at airports. While passengers stand in a booth, millimetre waves are beamed to create a virtual three-dimensional image from the reflected energy. The scanner essentially creates a ‘naked’ image of the passenger which makes it easy to detect weapons or other items prohibited on board an aircraft. The full body scan also shows breast enlargements, body piercings and a clear black-and-white outline of the passengers’ genitals. The image taken can in some cases be very identifiable. The data sought by this technology can therefore be considered personal data. Though both the producer of the UK scanners, RapiScan Systems, and airport authorities guarantee the immediate deletion of the image, worries arise over who actually sees this image and how necessary this system is.

The systems have been on trial at London Heathrow Airport from 2004 to 2008 and will now be introduced at several airports in the UK. Similar systems made by Smiths Detection have been on trial at Helsinki and Schiphol Airport. The systems are deemed very efficient because passengers no longer have to remove their coats, shoes and belts as they go through security checks, which saves time and hassle for the passengers. Some may even prefer the body scan as it replaces the patting or touching of someone’s body.

Though the time saving and reduction of inconvenience are noteworthy, the systems receive varied responses from the public. Some initial reactions range from: ‘absolutely disgusting’ to ‘why not?’.57 To consider the second reaction first, why not take this precaution for the sake of one’s own security,

55 Although in all passports the same international standards are implemented, experiments with passports from ten different countries show that characteristics of each implementation provide a fingerprint that is unique to passports of a particular country. This would mean that, with RFID readers, the nationality of everyone carrying a passport can easily be detected at a distance. H. Richter, W. Mostowski and E. Poll, Fingerprinting passports, published on http://www.cs.ru.nl/~erikpoll/papers/nluug.pdf.56 http://www.edps.europa.eu/EDPSWEB/edps.57 Naked Scanner in airport trial, BBC News, 13 October 2009, http://news.bbc.co.uk/2/hi/uk_news/8303983.stm last visited 22 November 2009.

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as would one do by showing his body to a physician when concerned about health? The comparison works up to a point, but the important issue of choice is dissimilar in the two situations. People can choose to go to a physician, and for woman who prefer so, a female physician can often be accommodated. The security checks at airports are mandatory and for the passenger it is not clear who is looking at the image, let alone that a passenger can choose between different persons. Of course it can be argued that people also have a choice whether or not to fly and thereby have a choice whether or not to subject themselves to the body scan, however this can not be considered a fair choice if it would imply that one is banned from travelling by air. When it comes to revealing one’s body, it is important to have control over the audience. It should, to the highest degree possible, also be a matter of personal choice. The analogy of the ‘naked eye’ standard for the use of cameras can be applied to body scanners. Whereas cameras are allowed to see whatever the naked eye could see, the body scanner sees far more than the naked eye. It sees underneath clothes and reveals body shapes. However, the fact that it is ‘just’ a machine watching, instead of having to undress in front of a person, may make it less personal and therefore less intrusive.

There are two ways to lessen the concerns over privacy arising from the use of this technology:1. By giving passengers a choice, to go through the normal metal detector first. If this gives

reason for further inspection, the passenger can choose the ordinary pat-down method or the body scanner.

2. By installing genital blurring software that fades the genital area. Another similar application would be to fade the face, or to project the image on a dummy, thereby anonimyzing the image.58

In general, the use of biometric technology carries the risk of intrusion through processing personal data. Facial images, fingerprints and body images (including face) are identifiable data and should therefore be processed with the utmost care. As for the body scanner, though images may not be stored, uncertainty arises over who is authorized to see the images. For the passport, there is uncertainty over the safety of the RFID chips. Both technologies under discussion require careful reconsideration because of the sensitivity of the data they process and the insufficient guarantees against abuse.

Data mining and Analysis and Decision supportData mining is the process of extracting patterns from data. 59 Data mining involves the use of sophisticated tools to discover previously unknown, valid patterns and relationships in large data sets. These tools can include statistical models, mathematical algorithms, and machine learning methods. Consequently data mining consists of more than collecting and managing data, it also includes analysis and prediction. 60

58 The Canadian Air Transport Security Authority, who also tried the body scanners, recommends that genital blurring software should not be installed “… for security reasons. If someone wanted to hide something in these parts, we would not see it.” CATSA spokesman Mathieu Larocque was quoted as saying in Green light for scanners, Edmonton Sun 11 September 2009, www.edmontonsun.com/news/canada. 59 For a full overview of data-mining techniques and their consequences on human rights, see deliverable 8 of the DETECTER project. (forthcoming).

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Government agencies routinely mine databases to create meaning out of minutiae. Information can be derived from existing databases such as telephone records. A valuable source seems to be the traffic data of communications. Traffic data consists of information about who is calling whom, from which location and at what time. In the EU, the retention of traffic data is regulated by Directive 2006/24/EC, which requires that such data is kept for a period from 6 months to 2 years.

A popular form of data mining is network analysis, which entails looking for underlying connections between people. Social network analysis could seek to create a ‘map’ that shows characteristics unique among terrorist networks. The challenge, however, is to find enough unique characteristics to differentiate terrorist social networks from those of non-terrorists. In order to shift through the data effectively, profiles are being used. Profiling is an investigative technique taking information from various sources about people, which may include their ethnicity, race, nationality, religion and travel movements. It is a technique whereby a set of characteristics of a particular class of person is inferred from past experience. Subsequently, databases are searched for individuals with a close fit to that set of characteristics. But “there are no clear-cut definitions for what defines terrorist behaviour.”61

This means that analysts are faced with trying to find something that relates all these different variables across potentially billions of records. It seems like a needle in a haystack problem. The statistics on effectiveness for data mining programs are less than impressive. Bruce Schneier conducted calculations on the accuracy of data mining systems in the US. According to Schneier, a data mining system with an assumed accuracy rate of 99 percent false positive, (one in 100 is false positive) and 99.9 % false negative (one in 1000 is false negative), and 1 trillion possible indicators (being 10 communications, per person, per day) will generate 1 billion false alarms for every real terrorist plot it uncovers. In practice this means that the police will have to investigate 27 million potential plots every day, in order to find one real terrorist plot per month. 62

Despite these figures, a French consortium of researcher is optimistic about the development of the CAHORS project, whose ultimate goal is the development of a global information management platform. “The CAHORS platform is intended to help intelligence operators through the whole data processing chain i.e. from data collection and filtering to understanding and decision support tools. A strong emphasis is being laid on the crucial information evaluation task which is based on textual data only. It anticipates contributing in the fight against terrorism by providing information seriousness assessment, social networks monitoring and information trends monitoring.” 63

Besides the concerns about the effectiveness of data mining, the issue of privacy also need to be considered. Privacy concerns based on profiling first arose in the US, where the Total Information 60 Jeffrey W. Seifert, Data Mining and Homeland Security: an overview. Congressional Research Service, updated January 27, 2006. (order code RL31798).61 Chris Westphal, CEO of Visual Analytics, which does data analysis for intelligence and law enforcement agencies, quoted in Can Data mining catch terrorists? By J. Nicholas Hoover, Information week, May 22 2006. 62 Bruce Schneier, Why Data Mining Won’t Stop Terror, 3 September 2006 on http://www.schneier.com/blog/ Bruce Schneier is the CTO of Counterpane Internet Security.63 Thomas Delavallade and Philippe Capet (Both authors are from the Thales group), Information Evaluation as a Decision Support for Counter-Terrorism RTO-MP-IST-086, published on http://ftp.rta.nato.int/public//PubFullText/RTO/MP/RTO-MP-IST-086///MP-IST-086-14.doc. Last visited 22 November 2009.

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Awareness data mining program was used to collect as much data as possible on every citizen. The public outcry that followed made Congress cut funding for this program in 2003. In the European Union, however, there seem to be two conflicting trends. On the one hand, EU Member States are implementing the Data Retention Directive, which enables the creation of massive databases from which information can be mined. On the other hand, the European Parliament expressed its concerns over profiling, notably on the basis of ethnicity and race, in a recommendation to the Council of 24 April 2009.64

The speed of implementation of the Data Retention Directive varies across European jurisdictions. This is due to the different appreciation of the vulnerabilities carried by databases, such as the large scale loss of data, leaks of sensitive data, the misuse of data and incomplete or inaccurate data.65 Though the Directive specifically mentions data will only be used for the investigation of serious crimes and for combating terrorism, citizens are afraid of mission creep in the legislation, meaning that the data may in the future also be used to combat less severe crime.66

General risks of information gatheringMeeting the necessity and proportionality requirements for introducing security technology largely depends on how the technology is used in practice. To determine its proportionality, the effectiveness of a technology is very relevant. The detection technologies presented show that the principle of transparency is also of importance in determining how proportionate the use of a technology is. The more overt the use of the technology, the more acceptable it seems. There are some other general concerns not specific to any particular detection technology.

Chilling effectThe use of detection technologies can be regarded as having a general ‘chilling effect’. The fear of being watched or eavesdropped upon makes people change their behaviour, even behaviour that is not illegal or immoral. According to a poll on the effects of the implementation of the Data Retention Directive in Germany, 52 % of the people asked said they probably would not use telecommunication for contact with drug counsellors, psychotherapists or marriage counsellors because of data retention. 11% said they had already abstained from using phone, cell phone or email in certain occasions.67

Questionable effectiveness due to information overloadWith the increased availability and ever-improving functionality of detection technologies, the volume of data gathered increases exponentially each year. This carries the risk of overwhelming intelligence agencies with more information than they can meaningfully handle, making widespread use of surveillance on the whole less effective. As Richard English points out, “The US’

64 European Parliament recommendation to the Council of 24 April 2009 on the problem of profiling, notably on the basis of ethnicity and race in counter-terrorism, law enforcement, immigration, customs and border control. (2008/2020(INI)).65 Dilemmas of Privacy and Surveillance, Challenges of Technological Change, the Royal Academy of Engineering, March 2007.66 German Forsa Institute, Meinungen der Bunderburger zur Vorratsdatanspeicherung, 28 May 2008, http://www.vorratsdatenspeicherung.de/images/forsa_2008-06-03.pdf. 67German Forsa Institute, Meinungen der Bunderburger zur Vorratsdatanspeicherung, 28 May 2008, http://www.vorratsdatenspeicherung.de/images/forsa_2008-06-03.pdf.

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unpreparedness for 9/11 arose partly from inadequate security coordination. There was also a failure to understand and interpret the mass of data actually in the authorities’ possession, and there was a lack of the assets necessary to acquire and monitor essential materials.”68

Positive outcomes detection technologiesThough the concerns and potential risks are many, one should not lose track of the positive effects of detection technologies. Many terrorist attacks have been foiled due to the use of detection technologies. The Norwegian Defence research Establishment (FFI) identified 15 thwarted mass casualty attacks designed to take a great number of lives since 2001. Transecur puts that number up to 19, with five in both France and Spain, three each in Germany and Britain and one in Belgium, Italy and the Netherlands.69

Though the chilling effect of detection technologies is negative when it concerns legitimate behaviour, the chilling effect of detection technologies can also have value as a deterrent. The panopticon effect favoured by Jeremy Bentham describes the phenomenon of prisoners being observed from a known viewing point, without knowing whether this viewing point is manned 70. Projecting this phenomenon on modern society, the panoptican effect would mean that people would choose to refrain from illegal conduct altogether, because they do not know exactly when they are being watched. The widespread use of detection technologies is by some suggested to have such an effect. 71

Part III Conclusions

The deployment and development of detection technologies is rapid and seems inevitable. The positive effect of their use is evident from the many foiled terrorist attempts. It can further be stated that if used as designed and authorized by a proper national law, which includes safeguards against abuse, most detection technologies as such do not pose a great risk to the right to privacy. However, effective they may be, the use of detection technologies is not unlimited.

Privacy is protected in national and international legislation which prescribe that the limitation to privacy, due to the use of detection technologies, should be proportionate to the aim it pursues.

68 Richard English, Terrorism, How to respond, Oxford University Press, 2009 p.131. This was also concluded in The Final Report of the National Commission on Terrorist Attacks Upon the United States, 2004. 69 ‘15 foiled attacks’. http://static.rnw.nl/migratie/www.radionetherlands.nl/currentaffairs/region/westerneurope/ter050218-redirected , last visited 22 November. 70 “It is obvious that, in all these instances, the more constantly the persons to be inspected are under the eyes of the persons who should inspect them, the more perfectly will the purpose X of the establishment have been attained. Ideal perfection, if that were the object, would require that each person should actually be in that predicament, during every instant of time. This being impossible, the next thing to be wished for is, that, at every instant, seeing reason to believe as much, and not being able to satisfy himself to the contrary, he should conceive himself to be so.” (emphasis added) Jeremy Bentham, Idea of the Inspection Principle, Letter I in a series of letters from Crecheff White Russia to a friend in England 1787.71 Ben Hayes for Transnational Institute, in association with Statewatch, NeoConOpticon, the EU Security –Industrial Complex, June 2009.

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It remains to be seen whether the detection technologies that have been introduced stand the test of proportionality. This test is of essence in determining whether the use of these technologies is permissible under law. When assessing proportionality the actual usage of the technology is of relevance. The risk that a technology disproportionately infringes privacy is dependent on, among other factors, the likelihood that the technology is misused, either by using the technology for other means than those for which it was initially authorized, by inaccurate use, e.g. ‘losing’ gathered data, or by not proving as effective as anticipated at its authorization. As explained earlier, the right to privacy may in certain cases be limited, but this has to be proportionate to the gain in security. If the gain is very minimal (i.e. the use of the technology does not lead to an increase in the detection of terrorists) the extent to which privacy may be infringed is also limited. To assess how great these risks are, further research is required to evaluate the use, the likelihood of abuse and the effectiveness (i.e. the gain in security). These aspects will be evaluated in Deliverable 17.2.

A sound legal basis that adheres to the requirement of foreseeability, and careful consideration for the proportionality and effectiveness of detection technologies are therefore of the essence when authorizing their use. Detection technologies and surveillance imposed outside such a legal framework should under no circumstances take place. As contemporary philosopher A.C. Grayling so accurately observed: “Indeed the threat of terrorism is real and present. The need to fight it by means of surveillance seems inevitable. Yet the destruction of civil liberties is not the way to combat terrorism. On the contrary: part of the right to way to combat threats to the liberal order is to reassert and defend its values. Terrorists – as their very name suggests – seek to frighten their victims into self repression, thus making their victims do their work for them, achieving what the terrorist’ brand of religious or political orthodoxy would achieve if they could impose it. To reduce our own liberties in supposed self-defence is thus to hand the victory to the terrorist at no further cost to them.” 72

72 A.C. Grayling, Liberty in the age of terror, a defence of civil liberties and enlightenment values, Bloomsburry London, 2009 p.4.

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