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How Can Body Scanners Be Applied in Shopping Malls Passing the Test of Article 8 of the ECHR, Based on Lessons Learned from Their Deployment in Airport Security?

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How Can Body Scanners Be Applied in Shopping Malls Passing the Test of Article 8 of the ECHR, Based on Lessons Learned from Their Deployment in Airport Security? How can body scanners be applied in shopping malls passing the test of Article 8 of the ECHR, based on lessons learned from their deployment in airport security? Master’s Thesis LL.M Law & Technology Tilburg Law School Tilburg University Supervisors: Student: Dr. C.M.K.C. Cuijpers Tommaso Chiericati Salvioni Ms. L. van Dongen SNR: 2017398 March 2020 Per aspera sic itur ad astra Table of Contents 1 INTRODUCTION ............................................................................................................ 5 1.1 BACKGROUND ................................................................................................................. 5 1.2 PROBLEM STATEMENT ..................................................................................................... 6 1.3 LITERATURE REVIEW ....................................................................................................... 6 1.4 CENTRAL RESEARCH QUESTION AND DERIVING SUB-QUESTIONS ..................................... 7 1.5 METHODOLOGY............................................................................................................... 8 1.6 STRUCTURE ..................................................................................................................... 8 2 CHAPTER 2 ................................................................................................................... 10 2.1 INTRODUCTION .............................................................................................................. 10 2.2 MILLIMETRE WAVES ...................................................................................................... 10 2.2.1 Effectiveness of MMW body scanners .................................................................. 12 2.3 TERAHERTZ RADIATION................................................................................................. 13 2.3.1 Effectiveness of THz cameras ............................................................................... 14 2.4 CONCLUSION ................................................................................................................. 15 3 CHAPTER 3 ................................................................................................................... 16 3.1 INTRODUCTION .............................................................................................................. 16 3.2 THE RIGHT TO PRIVACY ................................................................................................. 16 3.2.1 Classifications of privacy and its context ............................................................. 17 3.2.2 The right to privacy and its principle ................................................................... 18 3.3 THE RIGHT TO PRIVACY WITH REGARD TO BODY SCANNERS IN USE IN THE EU AIRPORTS 20 3.3.1 The legal framework relating to body scanners ................................................... 21 3.3.2 The principles of legality and transparency ......................................................... 23 3.4 THE RIGHT TO PRIVACY IN THE TRANSPOSITION OF BODY SCANNERS AND THZ CAMERAS TO SHOPPING MALLS .............................................................................................................. 26 3.4.1 Why are airport experiences relevant to the matter? ........................................... 26 3.4.2 MMW scanners and THz cameras in relation to infringements of privacy in malls 28 3.4.3 Lessons to be learned for shopping malls ............................................................ 29 3.5 CONCLUSIONS ............................................................................................................... 31 4 CHAPTER 4 ................................................................................................................... 33 4.1 INTRODUCTION .............................................................................................................. 33 4.2 THE ASSESSMENT FOR BODY SCANNERS AT AIRPORTS ................................................... 33 4.2.1 Second stage: suitability ....................................................................................... 34 4.2.2 Third stage: necessity and subsidiarity ................................................................ 35 4.2.3 Fourth stage: proportionality stricto sensu (or balancing) ................................. 37 4.3 CONCLUSION ................................................................................................................. 40 5 CONCLUSIONS............................................................................................................. 41 6 BIBLIOGRAPHY .......................................................................................................... 44 1 INTRODUCTION 1.1 Background Since the beginning of the new era of terror, states, institutions, and other bodies have been directing a considerable flow of resources towards new technologies and infrastructure in order to prevent attacks by fanatics, thus aiming at ensuring an improved level of security for citizens.1 The USA, Canada, Russia, and the European Union (EU), inter alia, are increasingly employing body scanners in the field of airport security. For example, in the USA, the Transport Security Administration confirmed that 78 airports had been equipped with screening technologies2 by 2011, while those numbers rose to 172 by 2017.3 In a new development, efforts are being made to ensure security with the transposition and application of millimetre wave (MMW) body scanners and terahertz (THz) cameras in semi-public venues, such as shopping malls, also defined as soft-targets.4 The first scanning technique has been transposed outside airports, having been used in Manchester to screen fans entering a stadium.5 Moreover, THz cameras have been developed recently and assist the surveillance system inside a Nairobi mall.6 The latter device is called the ThruVis camera and was invented by Digital Barriers.7 It can be deployed covertly as a mobile unit or installed as a fixed unit, thereby avoiding people 1 Gregory S McNeal, ‘Security Scanners in Comparative Perspective.’ (2013) 22 Health matrix (Cleveland, Ohio : 1991) 461 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/hmax22&div=20&id=&page=>. 2 ibid. 3 Amongst others: Kathleen Crislip, ‘Which Airports Have Full Body Scanners?’ (2019) Tripsavvy <https://www.tripsavvy.com/which-airports-have-full-body-scanners-3150257> accessed 16 November 2019; MarketsandMarkets Research Private Ltd, ‘Airport Full Body Scanner Market by Technology (Millimeter Wave Scanner (Active Scanner, Passive Scanner) & Backscatter X-Ray), Airport Class (Class A, Class B, Class C) and Region - Global Forecast to 2021’ (2016) < https://www.marketsandmarkets.com/Market-Reports/commercial- airport-full-body-scanners-market-859.html> accessed 16 November 2019. A report written by MarketsandMarkets Research Private Ltd estimated that the global market around full body scanners in the area of security has an estimated value of 79 USD million dollars in 2016 and is projected to reach 118 million by 2021. MarketsandMarkets Research Private Ltd is a leading company in market analysis sector, which provides quantified B2B research on 30,000 high growth emerging opportunities/threats which will impact. For an overview, consulting the company website at <https://www.marketsandmarkets.com/AboutUs-8.html> accessed 16 November 2019. 4 A soft target is a person or thing that is relatively unprotected or vulnerable, especially to military or terrorist attack, according to Oxford English Dictionary. 5 Amongst others: James Hall, ‘Iron Maiden deliver defiant message of solidarity and escapism’ (2017) The Telegraph <http://www.telegraph.co.uk/music/concerts/iron-maiden-deliver-defiant-message-solidarity- escapism-review/> accessed 16 November 2019. After a terrorist attack during a concert at the O2 Arena in Manchester on the 22nd of May 2017 left 22 teenagers dead, security measures in the form of airport-style body scanners were improved immediately in order to prevent future attacks. 6 Amongst others: Joseph Muraya, ‘Two Rivers Mall adopts security system used during Trump inauguration’ (2017) Capital News <https://www.capitalfm.co.ke/news/2017/02/two-rivers-mall-adopts-security-system-used- trump-inauguration/> accessed 16 November 2019. In February 2017, THz cameras were employed during a mall inauguration in Nairobi, attended by the President of the US, for screening participants and remained installed afterwards for daily use. 7 It is a company, headquartered between the United Kingdom and United States that has established its reputation by providing integrated mission-critical surveillance and security solutions to some of the best-known surveillance and security agencies in the world. 5 having to stop in order to be checked. This technology is capable of detecting many objects, such as explosives, liquids, and weapons, even under multiple layers of clothing.8 These two examples are part of an exponentially increasing new trend in the security field, namely the use of body screening technologies that were once confined to airport checkpoints, but are now employed in everyday-life environments. This paper examines only the case of shopping malls as a benchmark because they are probably the most striking example. 1.2 Problem statement Many concerns have been raised since body scanners were introduced at EU airports. From a legal perspective, these concerns focused primarily on the possible
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