Against the background of September 11 and other terrorist motivated attacks in which an entirely new level of motivation and perpetration is inherent, the increase in security measures, especially in the field of airport and aviation security by using cutting edge technology like body scanners, biometric passports equipped with RFID chips, video surveillance of sensitive areas, IT based passenger profiling or the evaluation of passenger name records represents a logical step towards a more efficient way of averting any danger.
Although the use of IT based security technologies may contribute to a general boost of the safety level, it is able to intensify the risk of an unconstitutional curtailment of fundamental rights at the same time. Whether the applied security solutions are still in relation to security purposes and thus can be regarded as being constitutional, depends to a significant relief from the provisions of fundamental rights and the rule of law as well as from the degree to which our society is willing to accept cuts in its civil liberties without taking legal action against. Since legitimacy and acceptance of the named technologies are not yet tested sufficiently, these new security strategies evoke a considerable degree of legal uncertainty in the audience, that is the persons affected by the action, as well as in the executive authorities and its representatives, the so called securitizing actors, which is even amplified by the respective legislators.
As an example, reference is made to the European Union’s Data Retention Directive, which was initially supported by a vast majority of the members of the European Parliament and thus could have been considered as being a sign of broad acceptance concerning the subsequent encroachment upon the right of informational self-determination. However, some constitutional courts, including the German one, found the respective national implementations of the EC Directive to be in breach with constitutional provisions. This already indicated a possible shift in direction in favor of civil liberties and finally found its expression in a critical re-examination of the Data Retention Directive by the European Commission. However, the European Union’s current project of collecting and evaluating flight passenger data without a given suspicion is in sharp contrast to this trend. The discussion about the draft bills on the Directive’s implementation where supporters of data retention only in specific occasions are opposed to those in favor of a suspicion-independent approach, serves as a prime example of the struggle for a new course at the national level.
In addition, a departure from the previously used reactive approach and a shift towards a so called proactive and risk-based one is recently sought in security law. The new approach intends to identify and dispose potential perpetrators and initiators of any kind of danger even before they will have reached the danger threshold. Although in this case, too, the police’s power to intervene is dependent on a fact-based prognosis, its legal framework is far less contoured than it is in traditional security law. Moreover, there is still no hard evidence of whether proactive measures will meet the expectations directed at them, namely serving as a guarantee of an increased level of security, or merely reinforce the society’s sense of security, a major socio-cultural factor for securitization. However, what seems certain for now is that precise provisions that regulate those mass encroachments upon fundamental rights which are necessary for preventive control are very difficult to accomplish with reasonable assurance. Therefore, such measures are potential targets in terms of legal proviso, the rule of certainty of law and of proportionality. This is also reflected by the national legislator’s frequent failures while trying to add more legal accuracy to the proactive approach.
In order to minimize the identified (legal) uncertainties that arise while accessing IT based security solutions, SIRA Law would like to analyze both jurisdiction and law-making related herewith in terms of its scope and scale. Therefore, it undertakes a breakdown of relevant lawsuits opposing the use of IT based security measures and makes references to the research results of the other subprojects, especially of TP1/Theoretical framework, TP2/Sociology and of TP7/Institutional Regimes in order to infer the specific measures’ acceptance. From these findings, trends are going to be deduced which shall serve as a base for future minimum standards. They shall be used in turn to outline a legal framework within which all entities involved (securitizing actors and audiences) are able to act without violating the law, and to provide clues with which the legality of future security technologies (securitizing moves) can be estimated more precisely. By using this legal framework, socio-cultural factors can be determined and assessed from a legal perspective which both serves to substantiate the theoretical framework of securitization plus.
Contact:Ass. iur. Philipp Rosch, LL.M. Universität der Bundeswehr München Fakultät für Staats- und Sozialwissenschaften Lehrstuhl für Öffentliches Recht (Prof. Dr. Kathrin Groh) Werner-Heisenberg-Weg 39 D-85577 Neubiberg Tel.: +49 89 6004 – 2744 Fax: +49 89 6004 – 4691 Email: firstname.lastname@example.org Web: http://www.unibw.de/sowi/institute/recht
Projekt management:Prof. Dr. Kathrin Groh Universität der Bundeswehr München Fakultät für Staats- und Sozialwissenschaften Lehrstuhl für Öffentliches Recht Werner-Heisenberg-Weg 39 D-85577 Neubiberg Tel.: +49 89 6004 – 3864 Fax: +49 89 6004 – 4691 Email: email@example.com Web: http://www.unibw.de/sowi/institute/recht