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Whole Body Imaging and Privacy Concerns that Follow

Posted by Srishti Goyal at Aug 22, 2011 12:00 PM |
Law student at the National University of Juridical Sciences, and intern for Privacy India, Srishti Goyal compares, contrasts, and critiques the Whole Body Imaging practices found in the US, the UK, and Australia, and makes recommendations for an Indian regime.

Introduction

Whole Body Imaging has been introduced in many countries in light of growing security concerns, two examples in particular being  the attack on the twin towers in USA, and what is commonly known as the Christmas Bomb (A man by the name of Umar Farouk Abdulmutallab tried to detonate a bomb on a flight from Amsterdam as it was about to land in Detroit.) Despite the security concerns that have motivated the implementation of Whole Body Imaging, there are also many concerns that have prevented the full fledged application of this technology. Opponents to the technology have stated that the full body scanner would expose travelers to harmful radiation and is thus a health hazard. Others have stated that these digital strip searches (as they are popularly known) will violate child pornography laws. Some, who are trying to encourage the use of full body scanners, are of the opinion that it is better to opt for a whole body scan as the “pat down” searches are more invasive in nature. There are also the concerns that persons may be singled out on the basis of their color and ethnicity. The scope of research for this particular paper is limited to the extent of the privacy concerns that have arisen in light of the use of the technology in order to achieve better security. The question that forms the crux of the debate is: should ones personal privacy be compromised in order to ensure security for one and all? The primary reason why whole body scanners are said to breach privacy is because of the invasive nature of the images produced, which can be detailed enough to show genitalia of the person being scanned.
Learning from the experience of other nations that have already implemented the use of Whole Body Imaging” we can decide what policies India should have in place and most importantly whether or not India realistically has a use for this technology.
Adequate privacy, it is said, is obtained when the restriction on access to persons and personal information allows a person not to be subjected to intrusion and public exposure [1]. Full body scanners can be called intrusive because in effect they allow the government to carry out strip searches by using technology to remove clothes instead of physically doing the same. Apart from this there are other concerns. For instance there have been instances when these images have been saved and have been uploaded on the internet [2]. In Lagos these images have been used as pornographic material. There is also a cause of concern amongst transgender who do not feel comfortable in revealing their gender which is different from the gender that they portray[3] and they are of the opinion that this information could lead to harassment. Since the scanners can detect medical equipment people who use colostomy bags and catheters which are otherwise hidden may find these scans embarrassing [4].

USA

In the U.S, Whole Body Imaging was introduced in light of the growing concerns with regard to security at airports and terrorist attacks. The Transportation Security Administration is responsible for monitoring security at the airport. The TSA has thus introduced Full Body Scanners at airports. In order to address the privacy concerns that have been raised the TSA has taken the following steps:

  •  Ensuring that the Security officer who is privy to the scan is not the same as the officer interacting with the person who is being scanned.
  • The TSA has also stated that personally identifiable information will not be stored and distributed.[5]
  • Another step towards safeguarding the privacy of the passengers has been to blur the faces of the person being scanned.[6]

 Though the TSA has taken various steps to ensure the privacy of individuals, one can argue that these measures are not without loopholes. The fact that the Security Officer looking at the scan and the Security officer handling the passenger are different does not do away with this invasion of privacy. There is also the added concern that these images may be uploaded on the internet, which in fact has already been done. The release and collection of these images is in contravention of the Privacy Act of 1974 that governs the collection, maintenance, use and dissemination of personal identifiable information about individuals which in the possession of the federal agencies. The TSA assures that the images will not be retained, but the fact is that the machines have been programmed such as to enable retention of images, if the same has been disable, it can be tampered with. Lastly, on the point of blurring of faces, it is a software fix and can be undone as easily as the application of the software. The TSA in its Privacy impact Assessment report had listed down that full body scanning would initially be a secondary screening measure. What this means is that everyone goes through one level of security screening and if one is randomly selected or the security has reason to suspect a passenger, the passenger can be called for a second level of screening. At which point the passengers will undergo full body scanning.
 A federal judge in California, in 1976 said that the laws of privacy “encompass the individual's regard for his own dignity; his resistance to humiliation and embarrassment; his privilege against unwanted exposure of his nude body and bodily functions." As already stated, these body scanners lead to situations that can be embarrassing, do lead to unwanted exposure of body, and can lead to situation where the person scanned could be humiliated (as in the case of transgender and other persons with catheters and colostomy bags). The Electronic Privacy Information Center is a non-profit group that was established to focus attention on civil liberties issue. EPIC challenged the constitutional validity of full body scanning, claiming that the same violated the fourth amendment [9]. The amendment guards against unlawful searches and seizures. In the case of whole body imaging, travelers are subjected to “invasive searches” without any suspicion that they did anything wrong, and without being informed of  the reason he/she is being subjected to a search of such a nature. [10]  The latest is the use of this technology in courthouses in Florida and at train stations. 

UK

In the UK if a passenger is selected for full body scanning, the passenger must comply [11]. The passenger is forbidden from flying if he or she refuses to the scanning process and cannot ask for an alternate screening process [12]  Unlike the US in the UK the option of a pat-down search is not available. The steps taken to protect the privacy of the passengers are the same as practiced in the US.

  • The images of the passengers are not retained
  • The images are produce in such a manner that the Security officer cannot recognize the person.

A major concern in UK is the violation of child pornography laws that do not allow the creation of indecent images of a child. However, a rule that would have exempted persons under the age of 18 from full body scans was overturned by the government in the UK [13]. Gordon Brown the Prime Minister of UK in 2010 gave permission for the use of full body scanners at the airports. BAA Ltd, which operates six airports in UK (including the Heathrow Airport) has undertaken the installation of these scanners at its airports. In general, the security at the airports comes under the ambit of the Homeland Security and the department will be supervising the installation of the machines. Lord Adonis, the Transport Secretary, confirmed the new policy in a written parliamentary statement, saying that the scanners would help security staff to detect explosives or other dangerous items [14].

One of the major opponents of Whole Body Imaging has been the Equality and Human Right Commission (EHRC), which is of the opinion that the use of this technology would breach the privacy rules under the Human Rights Act [15].  The move to use this technology has raised concerns about the excessive collection of personal data. Big Brother Watch, a campaign that fights intrusion on privacy and protects liberties of people, started an online movement that opposes and raises concerns with full body scanning. It has also listed down all the airports around the world that are using (or are going to be using) this technology [16].  The only group that has openly welcomed this move of the government has been the Liberal Democrats [17]. The British Department of Transport has published an Interim Code of Practice covering the privacy, health and safety, data protection and equality issues associated with the use of body scanners. The Code calls for the implementation of detailed security standards and for an effective privacy policy to be put in place by airport operators.

The privacy policy should include as a minimum:

  • rules regarding the location of the equipment;
  •  A process for identifying who will read the screen (i.e., a person of the same sex as the person selected for scanning);
  • A process for selecting passengers (passengers must not be selected on the basis of personal characteristics such as, gender, age, race or ethnic origin);
  • Prohibition on copying or transferring the images in any way;
  • Instructions for the images of the passenger to be destroyed and rendered irretrievable once the image has been analyzed; and
  • A process to call on an appropriate Security Officer if an image suggests there is a viable threat to passenger or staff security.

The BodyScanner Task Force was established by the European Commission to publish an impact assessment report and to advise the commission, but the task force has yet to publish its report with specific legislative proposals [18].   

Concerns in the UK also arose in light of a response of a judge to a complaint by the Electronic Privacy Information Centre (based in Washington). The judge stated that the Department of Homeland Security (USA) would be allowed to keep images of individuals screened at the airport [19]. This raises concerns amongst activists as to which images can and which images cannot be saved by the airport authorities.

Australia

Post the attempted attack on Christmas Day, pressure on countries such as Australia increased to make use of whole body imaging technology. However, the Association of Asia Pacific Airliners, an association of the international carriers servicing in Australia, criticised the use of full body scanners [20]. Apart from the privacy concerns, that people all over the world share, another aspect that is cause for concern in Australia is the increase in traveling cost. The machines used for whole body imaging is extremely expensive, and thus the question posed time and again in Australia is if it will be economically viable to make use of this technology?[21] The Queensland Council for civil liberties has opposed the use of this Advance Imaging Technology (AIT) and has stated that passengers should be allowed to refuse being scanned and should be allowed to opt for a pat down. Kevin Rudd (the Prime Minister of Australia at the time of implementation of this technology) had taken note of the privacy concerns and assured that such measure would be undertaken that would mitigate these concerns. Currently, Body scanners are installed at the international airports in Australia. The transport minister has said that the images produced would be stick figures and not naked images [22]. This move has been taken in light of the back clash that body scanners faced in the USA. Changes regarding whole body imaging have been referred to the Privacy Commissioner in order to ensure that privacy is not intruded. Namely, Full Body screening will not be applied to all the passengers - instead passengers will either be randomly selected or will be selected on the basis of their profiles [23].

India

Currently in India whole body scanners can be found at the Delhi International Airport [24]. Thus, debate and discussion about the use of these scanners has not gained much momentum in India. It would be advisable that when framing legislation or guidelines to govern full body scanners, India incorporates the experiences of other nations who have already started the use of this technology.

Generally speaking it seems as though the use of a full body scanner would not be recommendable for the Indian scenario. It has already been seen that these scans are not very effective in detecting plastic and fluids [25]. Additionally the scanner only shows objects that are on the body and not in the body. Thus, the effectiveness of these scanners is questionable (especially considering it cannot detect plastics and light fluids) [26]. Additionally, in India the demographic using these scanners would be very different from the people using these scanners in other countries. For instance, it has been pointed out that the interest of Muslim women has not been taken into account when introducing this method of screening. Apart from personal privacy issues there are religious issues that arise, and though the instances of the same maybe far apart in other nations, in India the same will act as a hindrance on a daily basis. If not dealt with delicately this can be a major cause of concern that will have far reaching ramifications. Furthermore, one cannot stress enough the cost that will be involved with the implementation of these scanners. These scanners are extremely expensive and require trained Security Officers to operate them.  Additionally, what the scanners seek to accomplish can be achieved by insuring that the pat-downs are carried out properly. But there is a caveat that must be mentioned here. In US, one is allowed to choose between a pat-down and a body scanner. There have been instances when these pat-downs have been more intrusive than the body scanners. Thus, there should be guidelines in place as to how these pat-downs should be carried out. The guidelines should specify actions that the Security Officials would not be allowed to carry out.

Lastly, even if India decided to adopt the full body scanners, considering it helps save time and takes only 15 seconds to complete, it should not be used as a primary screening method.  Hypothetically, if body scanners are used as a secondary screening process, alternate screening processes should be available if the passenger does not wish to subject himself/ herself to the scan. But then the question is why should the government invest so much in an expensive technology which the passengers can easily avoid?

 

Bibliography:

 
[1].A Companion to Philosophy of Law and Legal Theory, Constitutional Law and Privacy, Anita. L. Allen Pg 147.

[2].http://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans.

[3]. Available at http://www.airlinereporter.com/2010/08/we-do-not-have-all-the-same-body-parts-and-body-scanners-violates-your-privacy/.

[4].http://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and-virtual-strip-searchers.

[5].Privacy impact assessment report. Available at - http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_tsa_wbi.pdf.

[6].http://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and-virtual-strip-searches.

[7].http://travel.usatoday.com/flights/2010-07-13-1Abodyscans13_ST_N.htm .

[8].http://www.stopdigitalstripsearches.org/.

[9]. http://epic.org/privac/airtravel/backscatter/.

[10].http://www.dailymail.co.uk/news/article-2012249/TSA-scanners-catch-implant-bomber-admit-officials.html?ito=feeds-newsxml.

[11].http://news.bbc.co.uk/2/hi/uk_news/8490860.stm.

[12].http://www.bigbrotherwatch.org.uk/home/2010/03/body-scanner-refuseniks.html.

[13].http://news.bbc.co.uk/2/hi/uk_news/8490860.stm.

[14].http://www.timesonline.co.uk/tol/news/uk/article7011224.ece.

[15].http://www.timesonline.co.uk/tol/news/politics/article6990990.ece.

[16].http://www.bigbrotherwatch.org.uk/home/2010/06/airports-with-body-scanners.html.

[17].http://news.bbc.co.uk/2/hi/8438355.stm.

[18].http://www.huntonprivacyblog.com/2010/02/articles/european-union-1/uk-airports-implement-compulsory-use-of-full-body-scanners/.

[19].http://www.bigbrotherwatch.org.uk/home/2011/01/judge-blocks-investigations-into-body-scanners.html.

[20].http://www.theaustralian.com.au/travel/backlash-to-airport-body-scans/story-e6frg8rf-1225817485755.

[21].http://www.sbs.com.au/news/article/1190826/full-body-scanners-to-be-introduced-at-airports.

[22].http://www.theage.com.au/travel/travel-news/fullbody-airport-scans-part-of-security-revamp-20100209-npqo.html.

[23].http://www.theage.com.au/travel/travel-news/fullbody-airport-scans-part-of-security-revamp-20100209-npqo.html.

[24].List of Airports with full body scanners. Available at http://www.bigbrotherwatch.org.uk/home/2010/06/airports-with-body-scanners.html.

[25].http://www.independent.co.uk/news/uk/home-news/are-planned-airport-scanners-just-a-scam-1856175.html.

[26].http://www.bigbrotherwatch.org.uk/home/2010/01/invasion-of-the-body-scanners.html.

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