Transatlantic body scanners

Despite overwhelming public support for increased security to deal with the terrorism threats, the installation of body scanners in US airports has caused uproar. Questions have been raised about the risks of security scanners on privacy, fundamental rights and health. The American Civil Liberties Union (ACLU) has received more than 600 complaints about the Transportation Security Administration’s (TSA) pat-downs and scanners, which were deemed “a virtual strip search”. People are concerned about the radiation, the abuse and the lack of training. Persuaded by the arguments about the risks associated with body scanners, several US lawmakers have issued a number of proposals to restrict the deployment of body scanners and demanded a ban on the storage of pictures taken by these devices. Producers of the full-body scanners are, on the other hand, lobbying to block the proposed restrictions by arguing that the devices do not invade the citizens’ privacy and do not pose a threat to health.

How will the body scanner issue develop in the EU on this background? A European security policy first came into existence in the aftermath of the 9/11 terrorist attacks. Aviation security policies, which until then were the sole responsibility of EU member states, were no longer fit for purpose and insufficient to deal with the new international terrorism threats. It was against this backdrop that the Union’s policy was devised and international cooperation on aviation security matters intensified. Since then, new developments aimed at increasing security at airports have been proposed and introduced. A recent example is the deployment of security scanners in several European Union (EU) Member States airports.

Despite the existence of an EU framework on aviation security, the use of body scanners is not regulated at the EUlevel. While the existing EU legislation does not allow airports to replace current screening methods with the body scanners, member states have every right to deploy body scanners provided that the security checks comply with EU or national law. Security scanners would be eligible as screening method only after the approval of the European Parliament and the Member States in the Council. In the absence of EU rules, EU countries may introduce security scanners for airport trials or as a more stringent security measure than those provided by the EU legislation.

Currently, full body scanners have been introduced in four EU countries, including the United Kingdom and the Netherlands. Other member states like Spain and Belgium have refrained from the installation of these devices in their airports.

While there is widespread consensus among security experts and the majority of the European public that the measures could help reduce the risk of terrorist attacks, the different standards of scanners currently deployed in different EU countries pose a serious risk to the fundamental rights of EU citizens and the health standards established and protected by European Union law. The concerns raised relate primarily to the use of X-ray radiation and the creation of body images.

To deal with the inconsistent screening procedures and the risks associated with body scanners, the European Commission is expected to make a proposal in the first half of 2011, for EU-wide standards on security scanners that would ensure an equal level of protection for European citizens.

This is not, however, a completely new idea since the EU executive had issued already a proposal in 2008, which, inter alia, included provisions that would have made security scanners a recognized means for screening travelers. The draft regulation was heavily criticized by the European Parliament explicitly because of the inclusion of the security scanners in the draft proposal. The Commission then made a U-turn and withdrew security scanners from the original legislative proposal.

The current battle in the United States shows that stakes are high and is a preview of what is to come next in the European Union. With the EU set to regulate the use of scanners in the Union’s area, the scanner industry about to lobby the Block and an EU public that is very sensitive to issues relating to health, privacy and fundamental rights  - and perhaps even more sensitive than US citizens with regard to data protection and privacy as we have just seen with the Google Street View issue - exciting times lie ahead.

Dr. Andreas Geiger is the managing partner of lobbying firm Alber & Geiger in Brussels, Belgium.