15 November 2011


The European Union has adopted new rules on the use of full-body scanners at airports and other transport nodes.

The rules have been characterised as allowing "airports and Member States that wish to use security scanners for the screening of passengers to do so under strict operational and technical conditions".
Until now the use of security scanners has been done under a patchwork of different national operational procedures and standards and in a limited way. As a common EU-wide framework, the new legislation legally allows Member States and airports to replace current security systems with security scanners. It also ensures the uniform application of security rules at all airports and provides strict and mandatory safeguards to ensure compliance with fundamental rights and the protection of health.

Member States and airports do not have an obligation to deploy security scanners, but if they decide to use them, they will have to comply with the operational conditions and performance standards set at European level.
The EU Commissioner responsible for transport commented that -
Security scanners are not a panacea but they do offer a real possibility to reinforce passenger security. Security scanners are a valuable alternative to existing screening methods and are very efficient in detecting both metallic and non-metallic objects. It is still for each Member State or airport to decide whether or not to deploy security scanners, but these new rules ensure that where this new technology is used it will be covered by EU wide standards on detection capability as well as strict safeguards to protect health and fundamental rights. Experience to date shows that passengers and staff generally see security scanners as a convenient method of screening.
The announcement coincides with news that the national government in Australia will extend use of the scanners to airports other than those covered in the initial trial under the Customs Amendment (Serious Drugs Detection) Act 2011 (Cth).

The European Commission comments that -
Under the new EU legislation the use of security scanners is only allowed in accordance with minimum conditions such as for example that: security scanners shall not store, retain, copy, print or retrieve images; any unauthorised access and use of the image is prohibited and shall be prevented; the human reviewer analysing the image shall be in a separate location and the image shall not be linked to the screened person and others. Passengers must be informed about conditions under which the security scanner control takes place. In addition, passengers are given the right to opt out from a control with scanners and be subject to an alternative method of screening.

By laying down specific operational conditions and by providing passengers with the possibility of opting out, the legislation safeguards fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

In order not to risk jeopardising citizens' health and safety, only security scanners which do not use X-ray technology are added to the list of authorised methods for passenger screening at EU airports. All other technologies, such as that used for mobiles phones and others, can be used provided that they comply with EU security standards.
In April the European Parliament's Committee on Civil Liberties, Justice & Home Affairs in commenting on the proposed regulation -
1. Emphasises the importance of the fight against terrorism and organised crime, which constitute threats to the security of the European Union, as already identified in the Stockholm Programme, and to that end supports in this only the use of security measures aimed at the prevention of terrorist incidents that are prescribed by law, effective, necessary in a free and open democratic society, proportionate to the aim pursued and fully respect the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR); recalls that the confidence of citizens in their institutions is essential and that there must therefore be a fair balance between the need to ensure security and a guarantee of fundamental rights and freedoms;

2. Stresses in that regard that any counterterrorism measure should be in full accordance with the fundamental rights and obligations of the European Union, which are necessary in a democratic society, and must be proportionate, strictly necessary, prescribed by law and thus delimited within the specific aim it wishes to achieve;

3. Recalls that the use of body scanners must comply with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1);

4. Stresses that the objectives and the expected value of the use of body scanners must be clearly defined;

5. Urges in this regard that the aim to be achieved should be precisely and duly specified; calls for an extensive technical assessment to be carried out regarding the usefulness of body scanners; urges furthermore that the use of body scanners be prohibited in the event of any ambiguous or non-positive assessment;

6. Notes that only few Member States have carried out trials of body scanners(2) and many of these have abandoned body scanners subsequently, due to the high costs, delays and inefficacy(3), while most of the Member States have not deployed body scanners or have opposed them or affirmed that they do not intend to buy, deploy and use them;

7. Notes that, regardless of the inclusion of body scanners in the list of methods of screening allowed, those Member States already using body scanners are bound to ensure that citizens’ fundamental rights enshrined in the ECHR and in the Charter of Fundamental Rights are respected, protected and promoted, notably the right to privacy and to health, as furthermore requested by Parliament;

8. Highlights that those Member States that have used body scanners have excluded some categories of vulnerable persons, such as children, pregnant women, elderly people and persons with disabilities or with implanted medical devices and workers who are frequently exposed to radiation, and that common rules in this field must be applied at EU level when Member States deploy and use body scanners;

9. Believes that the comitology procedure in the aviation security sector, at least for measures having an impact on citizens’ rights, is inappropriate and calls for Parliament to be fully involved through ‘codecision’;

10. Points out that the decision to install security scanners at airports falls within the sphere of competence of the Member States, and in this context they must meet the minimum common standards and requirements set by the European Union;

11. Considers in that regard that the decision to use body scanners in airports should not be mandatory for Member States; stresses that if a Member State chooses to deploy body scanners in its airports, those body scanners should meet the minimum standards and requirements set at EU level;

12. Underlines that those Member States which decide to use body scanners should be able, under the principle of subsidiarity, to apply more rigid standards than those defined in the European legislation on the protection of citizens and their personal data;

13. Calls for every body scanner to meet a minimum set of technical requirements before it can be placed on a permissible screening methods list, and considers that these requirements should inter alia ensure the prevention of any possible health risk to passengers and staff members, including long-term risks; calls in this regard, taking into account the current state of technology, for the use of those scanners which use ionising radiation, for example x-rays, which can have a cumulative effect, to be restricted and calls for further research into their effects;

14. Calls in that regard on the Member States to periodically monitor the long-term effects of exposure to security scanners, taking new scientific developments into account, and to check that the equipment has been correctly installed and is properly used and operated;

15. Insists furthermore that body scanners should only be equipped with technology that does not enable any possibility of rendering full body images but merely standardised gender-neutral ‘stick figure’ images that are fully anonymised, and that any data processing or data storage must not be possible;

16. Calls on the Commission to impose deterrent sanctions for unauthorised recording or distribution of security screening images;

17. Calls for periodic technical controls to be carried out by a competent organisation to review the devices’ integrity and their compliance with the conditions laid down in paragraphs 13 and 15;

18. Stresses that every passenger and staff member has the right to refuse a body scan, without the obligation to give any explanation, and the right to request a standard security check, with full respect for the rights and dignity of that person; calls in this regard for all security personnel to receive proper and extensive training; insists that the restriction of use of those scanners which use ionising radiation, for example x-rays, would avoid the need to lay down explicit exceptions for vulnerable persons such as pregnant women, children, handicapped people or people with medical conditions that would render such checks inappropriate;

19. Stresses that refusal to undergo a body scan should not ipso facto give rise to any suspicion of the passenger or staff member concerned or additional burdens, including exhaustive searches or delays, and that, in the procedure before being submitted to a body scan or related to the refusal of a body scan, any form of profiling based on, for example, sex, race, colour, ethnicity, national origin, genetic features, language, religion or belief is unacceptable;

20. Calls for passengers and staff members to receive prior, proper and comprehensive information about the body scanner and the procedure of being checked by it, including their right to refuse to go through a body scanner and their right to complain and seek effective legal redress in case of irregularities related to the body scan or their refusal to be submitted to it and the subsequent standard security check; stresses that information to the passengers and staff members about the body scanner and the procedure of being checked by it should be provided not only at the time of the booking by the airline or on the airport website but also at the screenings; stresses the need for proper training of security personnel in this regard;

21. Stresses that any proposal to allow the deployment and use of body scanners as a permissible screening method should be extensively justified in an impact assessment covering, inter alia, the fundamental rights aspect of body scanners, the proportionality and necessity, taking into account the added value for the fight against terrorism, the costs incurred as a result of the acquisition, installation and operation of body scanners and the possible health risks to passengers and staff members, in particular vulnerable passengers and staff members, also having regard to the opinions of the European Union, international and national human rights and data protection authorities, such as the EDPS, the Article 29 Working Party, the Fundamental Rights Agency, the World Health Organisation and the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism;

22. Expects that the Commission will base its proposal on extensive independent and objective scientific information gathered among EU experts in the field and without interference from the industry sector, Member States’ governments and third countries;

23. Stresses that the technical specifications of the European Civil Aviation Conference Technical Task Force and the vendor contracts for body scanners should be declassified and made publicly available;

24. Recommends that every passenger’s ticket show the cost of security measures;

25. Requests that the European Union Agency for Fundamental Rights be asked to provide an extensive opinion on the fundamental rights aspect of any proposal concerning the deployment and use of body scanners;

26. Asks the Commission to explore alternatives to the use of body scanners, taking into account other measures already in use for detecting aviation security threats, demonstrating the need to replace current airport security monitoring measures with these scanners;

27. Calls on the Commission, the Council and the committee responsible to replace the words ‘security scanner(s)’ with the words ‘body scanner(s)’ where the scanners are used to screen persons, including in the title of the report, thereby avoiding inappropriate and unnecessary confusion and ambiguities.
Earlier this year the Australian Minister for Home Affairs Brendan O'Connor that "internal body scanning technology" will be "used at airports to stop drug couriers" -
Customs & Border Protection will test internal body scanning technology as a way to boost the detection of drugs that are being imported inside the bodies of drug couriers.

The changes to the Customs Act 1901 will allow accredited Customs officers to offer suspects the option of an internal body scan at an international airport, as part of a year-long trial.

To conduct a body scan, a reasonable suspicion must be formed that a person is carrying drugs internally and the suspect must consent to being scanned. If they refuse, they will instead undergo the current practice of a hospital examination.

"In 2009-10, 48 drug couriers were identified attempting to import more than 27 kilograms of illicit drugs within their bodies, including heroin and cocaine," Mr O'Connor said.

"Bringing illicit drugs into Australia is illegal. We want to do all we can to stop drug importation and protect Australian families from the immeasurable harm caused by drug use.

"Internally secreted drugs pose a dire health risk to a courier. It is not unusual for packages to split and for drug couriers to face serious illness or death as a result.

"Body scanning technology will help to more promptly identify if a suspect is carrying drugs internally and allow medical help to be rendered quickly," Mr O'Connor said.

In 2009-10, 205 people were taken to hospital for examination under suspicion of having drugs concealed internally. Upon medical examination, less than a quarter were found to be carrying drugs.

The option of an internal body scan will more quickly clear legitimate travellers and ensure a minimum of delay at our airports.
The Government went on to comment that -
The use of internal body scanning technology at airports is also expected to present significant time and money savings to Customs, the Australian Federal Police and our hospitals.

At the moment, when a person is suspected of internally concealing drugs, they are taken to a hospital for examination by a doctor.

"Last year AFP officers spent almost 8300 hours guarding suspects, including more than 4600 hours in hospital waiting rooms, rather than policing our airports and other public areas.

The technology produces images similar to a medical x-ray showing internal body tissue, skeleton and, where present, internal drug concealments.

"As Minister for Privacy, I'm acutely aware of community concerns about the use of such technology. I'd like to assure the public that this technology will be subject to strict controls.

"Most importantly, body scanning technology will not be used on all travellers or used randomly - it will only be used where there is a reasonable suspicion that a person is carrying drugs internally. In addition a suspect must consent to the use of body scanning technology."
The fine print is more problematical. The Minister's media release states that "measures to ensure privacy and individual rights are respected include" -
• law enforcement agencies form a reasonable suspicion that a person may be carrying illicit drugs internally before the technology can be used

• a suspect must give written consent to being subject to body scanning technology. If they don't, a hospital examination will be conducted, as is the current practice

• the operation of the body scanning technology will be conducted by a specially trained Customs officer

• the images taken are subject to storage, access and destruction controls

• the specific configuration of the body scanner device has been legislated to ensure that it is restricted to detecting internal drug concealments

• children, pregnant women and the mentally impaired will not be offered a body scan.
And of course "Customs & Border Protection is working with the Office of the Australian Information Commissioner to ensure that the use of the technology balances law enforcement needs with privacy concerns".