The question of ethnic and racial discrimination has become an important aspect of the legal discussions relating to the proliferation of the new competencies of law enforcement agencies employed in the "war against terrorism". For example, in its General Policy Recommendation No. 8 on Combating Racism While Fighting Terrorism[3], the European Commission against Racism and Intolerance (ECRI) Noted that the fight against terrorism engaged by the member States of the Council of Europe since the events of 11 September 2001 has in some cases resulted in the adoption of directly or indirectly discriminatory legislation or regulations, notably on grounds of nationality, national or ethnic origin and religion and, more often, in discriminatory practices by public authorities and, in some cases, the fight against terrorism have also resulted in increased levels of racist prejudice and racial discrimination by individuals and organizations.
The old desire within law enforcement to minimize human decision-making and to deploy automated investigating or screening processes brought a revitalization of formerly discredited measures, such as profiling.[4] Along this, the fast development of information technologies (IT) enables the interconnection of various commercial and law enforcement databases, and also the combination of formerly independent data sources from immigration and anti-crime authorities. The IT sector in the security business brings lucrative opportunities, thus the private sector is no longer only an innocent victim of excessive government legislation on, for example, reporting requirements, but also a keen partner.
As a briefing paper[5] commissioned by the Directorate-General Internal Policies points out, the proliferation of biometrics industry, which curtails the involvement of human participation and control in decision-making, along recent trends of outsourcing traditional state authorities to the private sector create mesmerizing possibilities for inter-operability, where, however, civil and law enforcement agencies may escape effective parliamentary scrutiny and control.
For example, in the opinion of the European Data Protection Supervisor[6] issued on the recent proposal of the Commission for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes, the EDPS expressed serious concerns about the proposal. This position was echoed in the opinions of the EU's Article 29 Data Protection Working Party. In its resolution of 12 December 2007 on the fight against terrorism[7], the European Parliament expressed similar doubts about the far-reaching consequences of using large-scale immigration and asylum databases (again, which curtail human control in the decision-making process) at the EU level in the fight against terrorism and in particular about giving access to the Eurodac[8] database to Member States' police and law enforcement authorities, as well as Europol in the course of their duties in relation to the prevention, detection and investigation of terrorist offences and other serious criminal offences, as called for in the conclusions of the Justice and Home Affairs Council of 12 and 13 June 2007.[9] The European Parliament reiterated[10] that any form of 'profiling' in counter-terrorism measures is unacceptable. Similar reservations were voiced by the European Parliament's draft recommendation to the Council on the problem of profiling, notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control.[11] The European Parliament was concerned[12] that the collection of personal data of passengers travelling to the EU could provide a basis for profiling, including on the basis of race or ethnicity, since it envisages 'running the PNR data of passengers against a combination of characteristics and behavioural patterns, aimed at creating a risk-assessment' and states that 'when a passenger fits within a certain risk-assessment, then he could be identified as a high-risk passenger'. As the reporter Sarah Ludford points out: "It is a fundamental principle of the rule of law that law enforcement actions should be based on an individual's personal conduct, not on their identity."[13]
In connection with these developments, thus, we can witness a renewed debate over preventive measures based on ethno-racial profiling. Some commentators emphasize that ethnic profiling is, in principle, unacceptable. The result, according to
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these critics, is the harassment of the innocent minorities, which is subjected to a kind of "racial tax" that affects all aspects of people's lives. A further unwanted result is the strengthening of ethno-racial essentialism and reductionism: black and white/ Muslim and non-Muslim/Roma and non-Roma/ immigrant and non-immigrant, etc. Another, entirely pragmatic criticism has been focused on the practical ineffectiveness of racial profiling: inherent in the prima facie plausible reasoning based on statistics, there is a profound (and provable) error, since racial profiles are, both over-inclusive and under-inclusive - over-inclusive in the sense that many, indeed most, of the people who fit into the category are entirely innocent, and under-inclusive in the sense that many other types of criminals or terrorists who do not fit the profile will thereby escape police attention. American studies[14] on (mostly) highway patrols have shown that inherent in the prima facie plausible reasoning based on statistics is a profound (and provable) error. Studies conducted in the New Jersey highway and elsewhere have targeted stops based on racial profiling, involving vehicle checks and body searches. The aim was to discern how effective these measures were in detecting drug possession and illegal possession of weapons. The studies clearly demonstrated that there was no significant, tangible difference between the proportional hit rate within the white population and the non-white population. Not only did the researchers find empirical proof for the fact that the authorities habitually stopped a disproportionate number of non-white drivers, but the research also confirmed that the hit rate testifies to the ineffectiveness of ethnic profiling. False negatives and false positives have been found to be much too high[15], thus, besides the fact that these measures have a disproportionate negative impact on the black (Roma, Arab) population that is law-abiding, they also reduce the possibility of finding perpetrators that belong to the majority population.[16]
Due to spatial constraints, this paper cannot include a full-fledged legal analysis of the phenomenon of ethno-racial profiling. Its scope is therefore limited to clarifying some of the crucial concepts and definitions and voicing constitutional concerns relating to the issue.
There is not one universally accepted and utilized definition for profiling. Depending on the actual context, international organizations, academics and politicians use vastly differing criteria. Even in the narrowly defined context of racial profiling by law enforcement agencies, considerably different definitions have been used. For example, in 2002, the EU's Working Party on Terrorism drew up recommendations for member states on the use of "terrorist profiling," and defined it as using "a set of physical, psychological, or behavioural variables, which have been identified as typical of persons involved in terrorist activities and which may have some predictive value in that respect."[17] In their Opinion on ethnic profiling,[18] the E.U. Network of Independent Experts on Fundamental Rights defines ethnic profiling as the practice of classifying individuals according to their 'race' or ethnic origin, their religion or their national origin, on a systematic basis, whether by automatic means or not, and of treating these individuals on the basis of such a classification. In its letter of 7 July 2006, the European Commission gave the following definition: racial or ethnic profiling encompasses any behaviour or discriminatory practices by law enforcement officials and other relevant public actors, against individuals on the basis of their race, ethnicity, religion or national origin, as opposed to their individual behaviour or whether they match a particular 'suspect' description'. According to James Goldston, the executive director of the Open Society Justice Initiative, by ethnic profiling we mean the use of racial, ethnic or religious stereotypes in making law enforcement decisions to arrest, stop and search, check identification documents, mine databases, gather intelligence and other techniques'[19]. In R. v. Richards,[20] a case presented to the Ontario Court of Appeals, the African Canadian Legal Clinic defined racial profiling as criminal profiling based on race. Racial or color profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. ECRI's General Policy Recommendation N° 11 on Combating Racism and Racial Discrimination in Policing[21] uses the following definition: "The use by the police, with no objective and reasonable justification, of grounds such as race, color, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities".
The word "profile" ("profil" in French) was originally used in the artistic field. It denoted the outlines and features of a face seen from one side or, more broadly, the portrayal of an object seen from one side only. By extension, this term eventually took on the figurative sense of "all the characteristic features of a thing, a situation or a category of people".[22] Profiling in the abstract sense refers to identifying information, making predictions and, finally, inference.[23] In
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any abstract profiling operation, three stages may be identified: The first stage is "observation", often referred to as data warehousing, where personal or anonymous data are collated. If the data refer to an identifiable or identified individual, they will generally be anonymized during this stage. The collected data may be of internal or external origin. For example, a bank might draw up an anonymous list of its customers who are bad payers, together with their characteristics, or a marketing firm might acquire a list of the "shopping baskets" of the major supermarket chains without identifying the shoppers.
This first stage is followed by a second set of operations, usually referred to as data mining, which is carried out by statistical methods and whose purpose is to establish, with a certain margin of error, correlations between certain observable variables. For instance, a bank might establish a statistical link between a long stay abroad and one or more missed loan repayments. The concrete outcome of this stage is a mechanism whereby individuals are categorized on the basis of some of their observable characteristics in order to infer, with a certain margin of error, others that are not observable.[24] Data mining is an extremely valuable tool in the area of marketing and customer management. It is one means of moving from mass marketing to genuinely personalized marketing. Likewise, profiling is widely used in the field of risk management, when determining the characteristics of high-risk customers. Such aims may include the adjustment of insurance premiums; prevention of arrears; aid to payment decisions where current account overdrafts exceed the authorized limit in the banking sector; use of a risk "score" in order to offer individual customers the most appropriate loan or refuse a loan depending on the probability of honouring repayment deadlines and the terms of the contract, etc. For example, cable digital TV provides programme distributors with precise information regarding channel selection and channel hopping by viewers who receive television channels via the telephone cable by means of DSL technology. They can thus create and keep a perfectly accurate viewing profile for each user. It therefore becomes technically possible to tailor advertisements to the user's profile. Also, a similar methodology is used by Google's online advertising system, where user's click stream is monitored. In the age of strategic marketing, profiling and data mining is used in creating packages and special offers; designing new products and customer loyalty policy.[25]
The third and last stage, known as "inference", consists in applying the mechanism described above in order to be able to infer, on the basis of data relating to an identified or identifiable person, new data which are in fact those of the category to which he or she belongs. Very often, only this last operation is referred to as "profiling", it, however, is essential, to see this final stage as part of a process.[26]
The Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data defined profiling as a computerized method involving data mining from data warehouses, which makes it possible, or should make it possible, to place individuals, with a certain degree of probability, and hence with a certain induced error rate, in a particular category in order to take individual decisions relating to them.[27] This concept of profiling differs from criminal profiling, where the aim is to get inside and understand the criminal's mind, but is similar to behavioural analysis since the aim is not to understand the motives which lead or might lead an individual to adopt a given behaviour, but to establish a strong mathematical correlation between certain characteristics that the individual shares with other "similar" individuals and a given behaviour which one wishes to predict or influence. As this approach does not depend on human intelligence, but on statistical analysis of masses of figures relating to observations converted to digital form, it can be practised by a computer with minimum human intervention.[28]
Profiling based on data mining is, thus, the process by which large data bases of personal information are subjected to computerized searches using a set of specific criteria. In law enforcement, these criteria are generally based on the common characteristics of persons responsible for past offences and often include ethnicity, national origin and religion. The data is used to narrow down a set of targets for further investigation. Data mining has been explored with a specific interest in its potential as a tool to identify terror "sleeper cells" as was the case with Germany's data mining effort after the discovery of the Hamburg cell in 2001. Called the Rasterfahndung, this massive and costly data mining exercise failed to turn up a single terrorist. The experience has been similar in the US, where immigration data was used to identify tens of thousands of persons for scrutiny as potential terrorists, but in the end not one charge on terrorism offences resulted. It is noteworthy that Germany's constitutional court has ruled that, in the absence of a concrete danger, this technique constitutes an unwarranted intrusion on personal privacy.[29]
Historically, the term "profiling" in law enforcement first came to prominence in connection with the training of crime profilers. In theory, criminal profilers are supposed to be capable of determining a criminal's personality type by analysing traces left at the scene of the crime. Recent developments in infor-
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mation technology, however, make profiling activities today increasingly easy and sophisticated, thus the possibilities offered by profiling are numerous and cover different areas of application. For example, in the USA, ATS (Automated Targeting System) has been developed in order to evaluate the probability of a given individual being a terrorist.[30]
To sum up the above, profiling (i) can be applied in a number of contexts, that can vary from the commercial sector to the field of law enforcement; (ii) it is a mechanism where the task is to narrow down the circle of potential individuals that may fall within the scope of activities of a particular agent within the given field: it may involve identifying a group of customers or potential perpetrators; (iii) profiling will always include certain characteristics upon which the process relies; and (iv) there will always be a scheme of reasoning according to which these characteristics and the way of their employments is established.
Bearing these considerations in mind, let us now focus our attention on profiling on the basis of ethnicity and race as it used by various law enforcement activities, especially in counter-terrorist measures and border control. According to Rebekah Delsol,[31] racial profiling refers to the use by the police of generalisations based on race, ethnicity, religion or national origin, rather than individual behaviour, specific suspect descriptions or accumulated intelligence, as the basis for suspicion in directing discretionary law enforcement actions such as stops, identity checks, questioning, or searches among other tactics. Racial or ethnic profiling is, thus, distinct from 'criminal profiling,' which relies on forms of statistical categorisation of groups of people according to identifiable characteristics believed to correlate with certain behaviours. Specific definitions of racial or ethnic profiling vary along a continuum ranging from the use of race alone as the reason for the stop to those using race along with other factors as the reason for the stop.[32] Using a narrow definition, racial profiling occurs when a police officer stops, questions, arrests and/or searches someone solely on the basis of a person's race or ethnicity. A broader definition acknowledges that race may be used as one of several factors involved in an officer's decision to stop someone. A stop is likely to be made on the confluence of several factors such as race or ethnicity along with age, dress (hooded sweatshirts, baggy trousers, perceived gang dress etc.), time of the day, geography (looking 'out of place' in a neighbourhood or being in a designated 'high-crime area'). This definition reflects the fact that racial profiling may be caused by the purposefully racist behavior of individual officers, or the cumulative effect of the unconscious use of racist stereotypes, but may also result from institutional factors, such as the use of enforcement techniques and deployment patterns, which impact on ethnic groups unequally.[33]
Profiling can take place in other stops or contacts with the public by any type of law enforcement officer or other authorities such as traffic stops in cities as well as highways, stopping and questioning of pedestrians in public places in urban areas, sweeps of trains and buses, immigration status checks by immigration officials, and airport security and customs checks or searches. Patterns of profiling can also be seen in discriminatory treatment after a stop has taken place, such as black motorists being given traffic citations while white motorists are let off with a warning, or Latino/a youth, but not white youth, being cited for noise violations, mass controls in public places, stop and search and identity checks, data mining and raids on places of worship, businesses and organizations. [34]
Thus, ethnic or racial profiling, that is profiling that includes race and ethnicity as one of the characteristics involved in the process, is a practice that relies on the tenet that ethnicity in itself signals a certain type of criminal involvement, terrorist plotting or illegal border crossing as more likely, and this assumption serves as a sufficient and therefore legitimate basis for law enforcement (police, secret service etc.) suspicion. The peculiarity of profiling lies in the fact that it is not based on illegal behaviour, but is centred around idea to collect legal behavioural patterns or character-traits that may signal criminal behaviour - it is therefore based on an assumed correlation between criminality and the specified characteristics or behavioural patterns, a deduction based on retrospectively judged effectiveness, which is always assumed, rather than checked and confirmed.
Law enforcement profiling, which mostly takes the form of stop and search, was first developed in the U.S. for detecting drug couriers, and was later implemented in traffic control, and more recently in anti-terrorist procedures. Originally, the procedure of profiling was aimed at creating a description profile for suspects, in order to help the authorities in filtering out potential perpetrators based on certain sets of (legal) behavior and circumstances. In the case of drug couriers, such a characterization might include short stop-overs between significant drug sources and the distribution location, cash paid for the airline ticket, and, based on criminal statistics, also ethnicity, sex and age. The inclusion of ethnicity in the profile was reasoned by the fact that gangs that play key roles in organized crime tend to be almost exclusively ethnically homogenous.
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Thus, at the heart of ethno-racial profiling is the idea that the race or ethnicity of the perpetrator serves as a useful tool for the detection of criminality. Therefore, stops are not or not solely induced by suspicious or illegal behaviour, or by a piece of information that would concern the defendant specifically. Instead, a prediction provides grounds for police action: based on the high rate of criminality within the ethnic group or its dominant (exclusive) involvement in committing certain acts of terrorism, it seems like a rational assumption to stop someone on ethnic grounds. Measures are therefore applied not so much or solely on the basis of the (suspicious) behaviour of the individual, but based on an aggregate reasoning. This does not necessarily involve a discriminatory intent, since the goal is to make an efficient allocation of the limited amount of the available police and security resources. After all, one might argue that minorities (blacks, Roma, etc.) constitute a very large proportion of the prison population (vastly exceeding their ration in the overall population) and many, or most of the terrorists are presumably Muslim fundamentalists (mostly from Arab countries). Accordingly, appropriate restriction of the circle of suspects seems easily justifiable. For example, the EU Terrorism situation and trend report 2008 identifies five types of terrorist groups and movements, two of which: "Islamist terrorism" and "Ethno-nationalist and separatist terrorist groups" include classifications that deem such interconnections useful.
A number of human rights can be identified which may be at risk when law enforcement agencies apply profiling techniques: the right to personal liberty and the freedom of movement, the right to property, the freedom to conduct a business, the right to fair trial, the right to family and private life, the right to asylum, the requirement of equal treatment and the prohibition of discrimination, the freedom of informational privacy and protection of sensitive personal data. Each of the elements will evoke and include a set of legal rules or test to apply, where a specific type of profiling, say profiling on the basis of ethnicity applied in border control by the police, will involve a peculiar patchwork of legal norms. For example, if race or ethnicity is used within the process, stringent data protection regulations for the handling of sensitive data are applicable. Also, if the field of activity falls, say, within the scope the of the EU's Directive of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin[35] and the screening mechanism has the consequences of different treatment (which may include denying service or over-policing), the legality of profiling under the Directive will depend on whether the rationale behind is rational and efficient (appropriate and necessary). When considering the legality of certain specific profiling techniques, whether deployed in anti-terrorism measures such those evoked in the EU PNR debate or in ordinary law enforcement operational methods, it needs to be scrutinized on the outset whether the inclusion of ethno-racial characteristics, or sensitive data handling would not deem the profiling mechanism racially illegal. For example, in its General recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system (2005), the Committee for the Elimination of Racial Discrimination states that ethnic profiling constitutes per se a form of racial discrimination. In line with this, the E.U. Network of Independent Experts on Fundamental Rights Opinion 2006/4 emphasizes that the use of 'racial' or ethnic characteristics as part of a set of factors that are systematically associated with particular offences and used as a basis for making law enforcement decisions is clearly discriminatory.
Due to spatial constraints[36] I will need to refrain from discussing all of the above questions, and will need to limit my assessment to pointing to the following: should a profiling scheme pass this first line of scrutiny, the legal qualification of the given measures will still depend on its proportionality, which will need to include the scrutiny of the efficacy of the given mechanism. In other words, it is a necessary but not sufficient condition to be legal for a profiling mechanism that singles out individuals on the basis of their ethnicity or race to be efficient from the practical point of view: that is, it needs to be proved that criminal involvement is higher within the specific ethno-racial group and the hit rates (successful application of the profiling mechanism) need to be high. The objective measurement of these factors are logical and necessary conditions for the balancing tests that are applied by international judicial organs and constitutional courts, as these tests include the weighting of how intrusive certain means are in comparison to the ends-provided of course, that the ends are legitimate. In addition to the handling of sensitive data and the efficacy of profiling, a third important point of scrutiny will also concern the reasons and justifications (standards of suspicion or probable cause) based on which law enforcement action or sanctions, such as stop and search may be initiated. Under international human rights law and
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constitutional jurisprudence[37], even when, in abstract terms, a legitimate aim exists, the notion of objective and reasonable justification should be interpreted as restrictively as possible in order to assess whether the proportionality test between the means employed and the aims sought to be realised is satisfied in the context of racial profiling. The i) effectiveness criterion, the ii) necessity criterion, and the iii) harm criterion will be the key concepts here.
The effectiveness criterion refers to the ability of the concrete measure to achieve the ends for which it was conceived. This includes the consideration of the extent to which the measure in question has led to the identification of criminals and the extent to which the measure in question affects the ability of the police to work with minority groups to identify criminals and the extent to which the measure in question may divert the police away from identifying real criminal activities. The necessity criterion refers to the existence or otherwise of other, less invasive, measures in order to achieve the same aim. Finally, the harm criterion involves the scrutiny of the extent to which the concrete measure affects the rights of the individual (right to respect for private and family life, right to liberty and security, right to be free from discrimination, etc.).
As spelled out in ECRI's General Policy Recommendation N° 11 on Combating Racism and Racial Discrimination in Policing, beyond considerations relating to the individual rights affected, the harm criterion should be understood in more general terms, as including considerations on the extent to which the measure in question institutionalises prejudice and legitimises discriminatory behavior among the general public towards members of certain groups. Research has shown that racial profiling has considerably negative effects. Racial profiling generates a feeling of humiliation and injustice among certain groups of persons and results in their stigmatisation and alienation as well as in the deterioration of relations between these groups and the police, due to loss of trust in the latter.[38]
The aim of this paper was to highlight the concept and utility, as well as the legal and socio-political background of ethno-racial profiling by law enforcement agencies. Profiling does not only come up in the context of 'ordinary' policing, but also in the context of the fight against terrorism, police and judicial cooperation and exchange of information and intelligence between EU member states, and may amount to an infringement of rights and guarantees provided to individuals in terms of privacy, data protection and non-discrimination. The question deserves special scrutiny not only because of the importance of the potential infringement of fundamental rights involved by these policies, but also because supported by the powerful corporate agendas of the surveillance and IT-industry, under the peculiar social-psychological environment of the "war against terrorism", and lacking a widespread academic and public debate on the issue, we actually see a renaissance[39] of formerly discredited and constitutionally questionable policies. ■
NOTES
[1] Senior Research Fellow, Hungarian Academy of Sciences Institute for Legal Studies
[2] The paper served as a basis for the lecture presented as part of the author's habilitation on November 23, 2009 at the Faculty of Law of the University of Pécs. The research was conducted under the aegis of the Bolyai Research Scholarship of the Hungarian Academy of Sciences, and was part of the 68361 OTKA Research Grant. Parts of this project have been published in András L. Pap, Ethnicity- and race-based profiling in counter-terrorism, law enforcement and border control, Ad-hoc briefing paper, Directorate-General Internal Policies, Policy Department C, Citizens Rights and Constitutional Affairs, European Parliament, Brussels, November 2008, PE 408.326, http://www.europarl.europa.eu/activities/commit-tees/studies/download.do?file=23279 and Law Enforcement Ethno-Racial Profiling: Concepts and Recommendations. In: Wolfgang Benedek - Wolfram Karl - Anja Mihr - Manfred Nowak (szerk.) European Yearbook on Human Rights 2009, Wien: Neuer Wissenschaftlicher Verlag, 2009, pp. 285-296.
[3] ECRI(2004)26 adopted on 17 MARCH 2004 Strasbourg, 8 June 2004
[4] For other measures, see for example, Richard Banks: Racial profiling and antiterrorism efforts, Cornell Law Review, July 2004" David A.: Harris: Racial profiling revisited: "Just common sense" in the fight against terror?, Criminal Justice, Summer 2002, David A.: Harris Racial profiling revisited: "Just common sense" in the fight against terror?, Criminal Justice, Summer 2002, Stephen Ellmann: Racial Profiling and Terrorism, New York Law School Journal of Human Rights, 2003, No. 19, William J. Stuntz: Local Policing After the Terror, Yale Law Review, June 2002., Anthony Thompson: Stopping the Usual Suspects: Race and the Fourth Amendment, New York University Law Review, October, 1999, András L. Pap: Ethnic discrimination and the war against terrorism - The case of Hungary In: Gábor Halmai, (ed) Hungary: Human Rights in the Face of Terrorism, Special English Edition of Fundamentum, Human Rights Quarterly, Vandeplas Publishing: Human Rights Series 1, USA, 2006
[5] Juliet Lodge: Trends in Biometrics, Directorate-General Internal Policies, Policy Department C, Citizens Rights and Constitutional Affairs, Briefing Paper, 4 December 2006.
[6] Brussels, 20 December 2007 Peter Hustinx European Data Protection Supervisor
[7] P6_TA(2007)0612
[8] The Eurodac system enables Member States to identify asylum-seekers and persons who have crossed an external frontier of the Community in an irregular manner. By comparing fingerprints Member States can determine whether an asylum-seeker or a foreign national found illegally present within a Member State has previously claimed asylum in another Member State.
[9] Part D.
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[10] Para 19
[11] Proposal for a Recommendation to the Council pursuant to Rule 114(1) of the Rules of Procedure by Sarah Ludford on behalf of the ALDE Group on the problem of profiling, notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control, 19 December 2007, INI/2008/2020, http://www.europarl.europa.eu/oeil/file.jsp?id=5587632
[12] Part D.
[13] See the Working Document on problem of profiling, notably on the basis of ethnicity and race, in counterterrorism, law enforcement, immigration, customs and border control by the Committee on Civil Liberties, Justice and Home Affairs. Rapporteur: Sarah Ludford., 30.9.2008, DT\745085EN.doc PE413.954v02-00. p. 2.
[14] See for example Michael Buerger - Amy Farrell, The evidence of racial profiling: interpreting documented and unofficial sources, Police Quarterly, Vol. 5. No 3, September, 2002, p. 290, David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, Minnesota Law Review, December 1999, p. 267.
[15] See for example Mariano-Florentino Cuéllar: Choosing Anti-Terror Targets by National Origin and Race, Harvard Latino Law Review, Spring 2003., Leonard Baynes, Racial Profiling, September 11th and the Media. A Critical Race Theory Analysis, Virginia Sports and Entertainment Law Journal, Winter 2002, pp. 12-13, and Deborah Ramirez-Jennifer Hoopes-Tara Lai Quinlan, Defining Racial Profiling in a PostSeptember 11 World, American Criminal Law Review, Summer, 2003, p. 1213.
[16] Consider the fact that the name of Yigal Amir, Yizchak Rabin's assassin would not have cropped up based on any kind of assassin profile; nor would the person who first blew up a commercial aircraft - she was a woman who wanted her husband dead in 1949. Gregory Nojeim, Aviation Security Profiling and Passengers' Civil Liberties, Air and Space Lawyer, Summer, 1998, p. 5.
[17] Ben Hayes, A Failure to regulate: Data protection and Ethnic Profiling in the Police Sector in Europe, Justice Initiatives, Open Society Justice Initiative, June 2005, p. 37
[18] 2006/4.
[19] Ethnic Profiling and Counter-Terrorism : Trends, Dangers and Alternatives, June 2006
[20] R. v. Richards (1999), 26 C.R.(5th) 286 (Ont. C.A.). 15
[21] Adopted on 29 June 2007
[22] For a detailed analysis, see Jean-Marc Dinant, Christophe Lazaro, Yves Poullet, Nathalie Lefever, Antoinette Rouvroy: Application of Convention 108 to the profiling mechanism Some ideas for the future work of the consultative committee, Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-Pd) 24th meeting 13-14 March 2008 Strasbourg, G01 (T-PD), Secretariat document by prepared the Council of Europe Directorate General of Human Rights and Legal Affairs, Strasbourg, 11 January 2008 T-PD(2008)01, p. 5.
[23] Id.
[24] For more, see, for example, L. A. Bygrave: »Minding the machine : Article 15 of the EC Data Protection Directive and Automated Profiling«, Computer Law & Security Report, 2001, vol. 17
[25] Application of Convention 108.. , p. 4-5 and 10-11.
[26] Id. p. 3.
[27] Id.
[28] Id. p.5.
[29] The Federal Constitutional Court decided on April 4th, 2006, that the Rasterfahndung was not conform to the individual's fundamental right of self-determination over personal information. See Rebekah Delsol, Presentation to the LIBE Committee of the European Parliament, Brussels, 30 June 2008, http://www.europarl.europa.eu/document/activities/cont/200806/20080625ATT32712/20080625ATT3271-2EN.pdf
[30] See for example, Privacy Impact Assessment for the Automated Targeting System, November 22, 2006, US Department of Homeland Security, http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ats.pdf
[31] Rebekah Delsol, Presentation to the LIBE Committee of the European Parliament, Brussels, 30 June 2008, http://www.europarl.europa.eu/document/activities/cont/200806/20080625ATT32712/2008025ATT32712EN.pdf
[32] Id.
[33] Id.
[34] Id.
[36] For example, in addition to the handling of sensitive data and the efficacy of profiling, when assessing the constitutionality of ethno-racial profiling, another point of scrutiny needs to concern the reasons and justifications (standards of suspicion or probable cause) based on which law enforcement action or sanctions, such as stop and search may be initiated. It is important to note that since law enforcement work, investigation, crime prevention is not built solely on actual illegal behaviour and suspicion, it is not always easy to codify under what conditions might the police (or other law enforcement organs) initiate action. The standards will change according to how concretely specified the perpetrator is, what the degree of suspicion is, and in what capacity the law enforcement agent is acting: is it a random, voluntary encounter; consensual questioning that does not involve coercion, where in theory the citizen may disregard the question; stopping and questioning during an investigation; vehicle control; border control, etc. A considerable amount of jurisprudence and case law tackles questions like what kind of suspicion (if any) is necessary for stop and search powers or are random checks or roadblocks acceptable. In order to easily pinpoint to unwarranted racist motivation, it would require that the court (or legislator) state that police action can be initiated exclusively on the basis of individual behaviour or suspect description. But courts throughout the world have upheld a number of types of general controls: roadblocks, raids, alcohol tests, etc.
[37] For example, in the aforementioned report by the European Data Protection Supervisor on the PNR proposal, Peter Hustinx expressed serious concerns about the necessity and proportionality of the proposal which, in his view, are not sufficiently established in the proposal.
[38] See for example Rebekah Delsol-Michael Shiner: Regulating Stop and Search: A Challenge for Police and Community Relations in England and Wales, Critical Criminology (2006)
[39] Ironically in the Anglo-American world, by the time of the World Trade Centre attacks racial profiling suffered a decisive rejection within professional as well as political circles. In the fall of 1999, 81 percent of those asked opposed stops and vehicle control based on ethnic profiling. By contrast, in a poll conducted a few weeks after September 11, 2001, 58 percent approved of the idea that Arabs (including American citizens) be subject to stricter security checks before a flight. Samuel R Gross - Debra Livingston: Racial Profiling Under Attack, Columbia Law Review, June 2002, p. 1413.
Lábjegyzetek:
[1] The Author is a senior research fellow, Institute for Legal Studies of Hungarian Academy of Sciences.
Visszaugrás
