EU: Commission fails to refer measures on the introduction of body scanners to the European Data Protection Supervisor

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- Dubious legal basis for Commission plan

- No justification given for allowing for the use of full body scanners when less intrusive technology is available

The European Data Protection Supervisor (EDPS) has written a highly critical letter to the Vice-President of the European Commission, Sim Kallas, registering its displeasure at not being consulted on the use of so-called "security scanners" (body image scanners) adopted by the Regulatory Committee for Civil Aviation Security on 6-7 July 2011:

"The EDPS regrets that he has not been consulted as regards these proposals, that he has not been granted access to the Proposal for a. Commission implementing Decision amending Commission Decision 20101774 lEU and that he only received the impact assessment on 14 October 2011."

Full-text of letter and Opinion sent to the Commission (pdf)

Questionable legal basis

The EDPS says that:

"The choice .of the regulatory procedure and the regulatory procedure with scrutiny is questionable. As the European Parliament stated in its Resolution of 23 October 2008, rejecting the previous Commission Proposal for a Regulation on security scanners, the
proposals contain more than technical measures, they have an impact on fundamental rights,
including the rights to privacy and data protection, and it is questionable whether they meet
the principle of proportionality (see below). Therefore, a wider and transparent debate should have been required." [emphasis added]

Necessity and proportionality

The Commission has acknowledged that some screening technologies reveal a detailed display of the body. The EDPS notes that the European Court of Human Rights accepts that there may be interference with the right to privacy if it is lawful, pursues a legitimate aim and is "necessary in a democratic society" and that it is considered necessary if it is proportionate to the aim pursued and backed by relevant reasons by governments. And the European Court of Justice has ruled that it also has to be demonstrated that: "other less intrusive methods were not available":

"The effectiveness of body scanners in comparison with less intrusive methods is therefore
relevant to assess the necessity and proportionality of this measure and consequently its
legitimacy. Recital 4 of the draft Commission Regulation states that security scanners are an
effective method for passenger screening. However, it does not provide any justification on
the necessity of adding them to the list of allowed methods of screening of Regulation (EC)
No 27212009." [emphasis added]

Body scanners

The EDPS, the Article 29 Working Party on data protection and the European Privacy and Data Protection Commissioners have already stated:

"security scanners presenting a standardised body image (mimic board) would be less intrusive and should be used instead of scanners providing a detailed picture of the data subjects' body."

And the European Parliament endorsed this view saying that it:

""believes that only stick figures should be used and insists that no body images may be produced"

As there are doubts about the effectiveness of body scanners and, that even if necessity is demonstrated:

"there is at least one type of body scanners which is less intrusive, the EDPS regrets that body scanners providing a detailed image of the body will be allowed."

Moreover, the EDPS is concerned that the Commission's proposal will allow scanners providing a "full image" will be allowed with no provision being set out for them to be phased out.

Source: Full-text of EDPS letter and Opinion sent to the Commission (pdf)

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