Privacy and Big Data
Blacklisting: the right to travel in the time of aviation terrorism
Arne Misselwitz
486215
I. Introduction
Since President George W. Bush declared the „war on terror“ during a speech in 2001, the
international community introduced diverse attempts to combat terroristic threats.1
Particularly,
the possible damages caused by aviation terrorism are severe. Therefore, different international
bodies and national states, inter alia, introduced the so-called blacklisting regime.
„Big data blacklisting is the process of categorizing individuals as
administratively "guilty until proven innocent.“2
As the quote of Margaret Hu might connotes, the blacklisting regime is facing different
concerns regarding the guarantee of fundamental rights and basic freedoms. The following lines
aim to briefly characterize the blacklisting regime and afterwards, examine different concerns
of blacklisting.
II. Passenger rights in the time of aviation terrorism and the „war on terror“
Firstly, in order to examine the given issue reasonable, it is necessary to briefly define the right
to travel. According to the meaning in the U.S.A., Richard Sobel defined the right to travel as
a fundamental and broadly based personal, political and economic right.3
Therefore it contains
the right for free domestic movement without governmental curtailment.4
A very important
term of this definition is the word „domestic“. Alongside with the legal framework in the
U.S.A., Germany and other European countries limit their right for domestic movement.5
In
Germany, Art. 11 of the German „Grundgesetz“ stipulates the right for free domestic movement
for every German citizen. However, although the constitutional right to travel cannot be fully
taken into account considering aviation travelling, one can perceive the general intention of
modern democratic societies to enable their citizen to move freely, wherever they want to go.
The right to travel to other countries, particularly via plane certainly has to be treated differently.
Besides the fact that different legal orders and frameworks apply in different countries, the
possibility to travel via plane harbours diverse challenges and security risks to cope with. In
this respect, one has to balance the general intention of a free movement and the fundamental
rights and basic freedoms of everyone against the risks and challenges that come with the
1
Text of George Bush´s adress to a joint jession of Congress and the American people, September 21st 2001;
Link: https://www.theguardian.com/world/2001/sep/21/september11.usa13.
2
Hu, Margaret; Big Data Blacklsiting; 67 Fla. L. Rev., 1735; 2015 (pp. 1747).
3
Sobel, Richard; The Right to Travel and Privacy: Intersecting Fundamental Freedoms; 30 J. Marshall J. Info
Tech. § Privacy L. 639; 2014 (pp. 640).
4
Sobel, Richard; The Right to Travel and Privacy: Intersecting Fundamental Freedoms; 30 J. Marshall J. Info
Tech. § Privacy L. 639; 2014 (pp. 639).
5
Decision of the German „Bundesverfassungsgericht“: BVerfGE 6, 32.
current possibilities of travelling around the world. Particularly, travelling with planes in times
of aviation terrorism has become a huge issue since 9/11. According to the severe impacts of
an plane accident or a terrorist attack, the concerns and the safety measures within an airport
are supposed to be remarkably high.
Possibilities to ensure a safe and secure plane traffic, especially when it comes to the potential
risks emanating from passengers sitting in the plane, are the so-called „No Fly Lists“ or
„Blacklists“.6
The consequences for someone being listed on such a list might be imposed travel
bans, frozen assets or the suspicion of being a terroristic thread by simply being associated with
a certain group or organisation.7
These lists are established by either single national states or
international and regional bodies, such as the UN and EU.8
Those lists contain names of
individuals and groups and thereby designate them to be somehow related to terrorist attacks or
organisations and as a consequence, ban them from travelling with a plane or put them
underneath further and more intimate security checks.9
The blacklisting regime on the
international level, concerning the EU, has been introduced by UN Security Council
Resolutions, namely Resolution 126710
, Resolution 133311
and Resolution 1373, which
contains general obligations and commitments to combat terrorism in the 21st century.12
Certainly, to simply ban people from entering on an plane or freeze their assets is a very
effective way for the respective government agency or international police organisation to
prevent those who are presumably somehow related to terrorist groups, from basically doing
anything regarding aviation travelling.13
However, on the other hand, this approach of
preventing terrorist attacks raises diverse concerns according to its compatibility with formally
guaranteed fundamental rights and basic freedoms. Particularly the fact that some of those listed
on a blacklist are solely presumed to be related to terroristic groups seems to be highly
questionable in consideration of the fundamental presumption of everyone being innocent until
proven guilty.
In order to systematically approach some concerns raised by this way of excluding or impeding
some people from exercising their right to travel, the following part of this elaboration will
firstly name the certain fundamental human right affected and afterwards, the issue the
blacklisting regime raises regarding the respective human right.
Firstly, a frequently expressed concern about the regime of blacklisting is the presumed
incompatibility of „No Fly Lists“ with the Right to a Fair Trial.14
The Right to a Fair Trial is
enshrined in different international agreements and treaties, such as Article 6 of the European
Convention on Fundamental Freedoms and Human Rights, Article 10 of the 1948 Universal
6
Hu, Magarete; Big Data Blacklisting; 67 Fla. L. Rev, 1735; 2015 (pp. 1775).
7
Sullivan, Gavin; Rethinking terrorist blacklisting; The Guardian, Fri. 10 Dec. 2010; Link:
https://www.theguardian.com/commentisfree/libertycentral/2010/dec/10/terrorist-blacklisting-un-report-human-
rights.
8
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test;
Constellations Volume 15, Number 4, 543; 2008 (pp. 543).
9
Sullivan, Gavin; Rethinking terrorist blacklisting; The Guardian, Fri. 10 Dec. 2010; Link:
https://www.theguardian.com/commentisfree/libertycentral/2010/dec/10/terrorist-blacklisting-un-report-human-
rights.
10
1999, concerning the Taliban.
11
2000, concerning Osama Bin Laden and Al Qaida.
12
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test;
Constellations Volume 15, Number 4, 543; 2008 (pp. 544).
13
Cameron, Iain; European Union Anti-Terrorist Blacklisting; 3 Hum. Rts. L. Rev. 225; 2003 (pp. 225).
14
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test;
Constellations Volume 15, Number 4, 543; 2008 (pp. 549).
Declaration of Human Rights and Article 14 (1) of the 1966 International Covenant on Civil
and Political Rights.15
Article 6 of the European Convention on Fundamental Freedoms and Human rights lays down
the following:
„In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.“
According to the various anchoring in different international agreements, the Right to a Fair
Trial can be considered as one of the most important fundamental rights. Therefore, a raised
concern about the compatibility of blacklisting with the Right to a Fair Trial has to be examined
carefully. In order to fully exercise the Right to a Fair Trial, it is of essential importance for a
petitioner or defendant to be able to fully access the respective materials and information that
lead to a certain act by an authority. Transferred on the blacklisting regime, for the Right of a
Fair Trial, it is absolutely necessary to know for what reason one is listed and thus not able to
enter an plane, use his property and consequently being hampered from exercising his or her
rights to travel. Moreover, it is simply not possible to provide a Fair Trial by an independent
judicial authority, if the relevant information is not available, neither for the complainant, nor
for the judicial authority itself. Regarding this necessity, particularly the access to the crucial
information is not provided by the respective entities.16
The particular information leading to a
registration on a blacklist, as well as the fact of being listed itself and overall the whole process
itself are not accessible and comprehensible for the affected individual, since the decision is
based on secret intelligence agency materials.17
In other words, he or she does not know whether
there is an existing registration, let alone the information and reasons let to it.18
Admittedly,
there has been an enhanced awareness of the lack of the ability to exercise the Right to a Fair
Trial through recent EU case law decisions, which claimed their inability to provide a Fair Trial
with effective judicial redress according to the lack of available information.19
However, the
basic systematic problem that the decisive information is not available for the listed individual,
as well as for the respective court, remains and therefore makes it questionable to consider the
process of blacklisting and the opportunity for a petition to be removed from that list to be
compatible with the Right to a Fair Trial.
Secondly, alongside with the Right to a Fair Trial goes the Right to be Heard and the Right to
be Informed. The Right to be Heard commits the respective agencies to provide the listed
individual with the burdening evidence and giving them the opportunity to explain their
15
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 27).
16
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 26f.).
17
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test;
Constellations Volume 15, Number 4, 543; 2008 (pp. 547).
18
Sullivan, Gavin; Rethinking terrorist blacklisting; The Guardian, Fri. 10 Dec. 2010; Link:
https://www.theguardian.com/commentisfree/libertycentral/2010/dec/10/terrorist-blacklisting-un-report-human-
rights.
19
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 81). &
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test; Constellations
Volume 15, Number 4, 543; 2008 (pp. 549).
perspective and provide relieving facts.20
Controversially discussed is the issue of the certain
moment one has to be given the opportunity of provide his point of view. On the one hand, it
would somehow contradict the whole system of blacklisting, if one would be informed about
investigations concerning him as soon as they started. Presumably, the results of those would
not be very meaningful, since the suspicious could remove all incriminating facts. However, in
any case, one has to be informed as soon as possible after the registration on a blacklist about
the fact that he or she is listed in order to be able to provide relieving evidence.21
Regardless
the particular moment of notification for the individual, the listed ones yet do not have the
opportunity to make direct representations to the UN Sanctions Committee in order to question
the respective decision which blacklisted them.22
In turn, this lack of accessible information to
challenge the information cannot be considered as compatible with the fundamental Right to be
Heard.
Additionally, the Right to be Informed is closely connected to the Right to a Fair Trial and
requires the full access to any relevant information due to the registration process.23
As outlined
already, individuals are not provided sufficient information neither by the respective
investigating agency nor the UN Sanctions Committee.24
However, although there has been
some information made accessible for the blacklisted ones, especially the decisive reports of
intelligence agencies and therefore the crucial reasons for the listing are not available for the
individuals.25
Furthermore, besides the Right to a Fair Trial, severe accusations due to the blacklisting regime
are made in regard of the consistency with the principles enshrined in Article 6 and 13 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms, namely
the Right to Judicial Review and Effective Remedy. In order to comply with the Right to
Judicial Review, the relief requires to be effective and exercised by an independent and
impartial judicial body.26
According to this, neither the UN Sanctions Committee nor the EU
Council can be considered independent in the respective manner, since they are the responsible
authorities for the blacklisting process.27
The above-examined concerns about the compatibility of the blacklisting regime and the
fundamental human rights all have a common ground. On the one hand, the mentioned
fundamental rights and freedoms are formally guaranteed by several international agreements
and treaties. Regarding the paperwork, one benefits from versatile and inevitable rights
guaranteed in order to protect the mentioned freedoms and rights, and in case there occurs a
presumed violation of those, one can access effective judicial review. Theoretically, this sounds
20
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 28).
21
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 28).
22
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 28).
23
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 29).
24
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test;
Constellations Volume 15, Number 4, 543; 2008 (pp. 546).
25
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 30).
26
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 32).
27
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 32).
marvellous for individuals. On the other hand, the objective of social security and the prevention
from terroristic attacks occupy the other side of the scale. In particular, if it comes to terroristic
threads accorded to the aviation industry, the damage resulting from those in case they are
„successfully“ performed is enormous. Therefore, the argument of terroristic prevention usually
seems to outweigh rights of the individual by far. This general observation can also be
transmitted to the blacklisting regime. The huge theoretical threat of terroristic attacks
undermines the individually guaranteed rights. Especially alarming is the fact that this
undermining and violation of fundamental rights seems to occur systematically and on regular
basis when it comes to blacklisting of suspicious people.
Besides the legal objections, one can detect the potential abuse of those blacklists to achieve
political goals and undermine criticism. For instance, the Kurdish Workers´ Party PKK has
been blacklisted by the EU in 2002.28
Furthermore, US Republicans tried to blacklist WikiLeaks
as a terrorist organisation.29
Regardless, how one judges these two examples in detail, both of
them are highly controversial discussed in an international context. While one could consider
the PKK as an terroristic organisation, another could mention their right for self-determination.
However, this elaboration certainly does not want to assess the affairs of Wikileaks and PKK,
but these matters may raise the awareness of the possibility for political abuse of the blacklist
regime. In Particular, if the regime itself and the contained processes are that opaque.
III. Conclusion
Taking all the outlined concerns into account, the blacklisting regime seems to lead individuals
in a „Kafkaesque“ situation.30
Once an individual is listed, the available methods for either
gaining information about the blacklisting process itself or efficiently challenge the listing
decision seems to be obscure. Summarized, this „Kafkaesque“ situation can hardly be
considered sufficient, regarding the fundamental principles of a Right to a Fair Trial and Right
to be Heard and Informed. In Particular, because the mentioned principles are not meaningless
paperwork but fundamental elements of a modern and democratic society, the compliance of
the blacklisting regime as a whole with the legally binding principles needs to be enhanced. A
further risk of such an opaque situation is the potential abuse and arbitrariness of the system.
This hardly can be accepted by the international community. However, one has to admit that
the potential damage caused by a terrorist attack is extremely severe. Therefore it certainly is
necessary to provide possibilities and regimes to cope with those challenges. But, even though
a single individual might has to accept restrictions or special treatments within a security check
at an airport, it is unlawful and not acceptable if fundamental Human Rights of crucial
importance are violated systematically and without adequate juridical redress for the affected.
As a conclusion, the right to travel currently faces enormous challenges, particularly when it
comes to aviation travelling. Regardless, whether the blacklisting regime is suitable for facing
those challenges, it certainly needs to be improved in a manner that forecloses systematic
human right violations. Although the „war on terror“ is one of the most important challenges in
28
Sullivan, Garvin and Hayes, Ben; Blacklisted: Targeted sanctions, preemptive security and fundamental rights;
ECCHR; 2010 (pp. 48).
29
Sullivan, Gavin; Rethinking terrorist blacklisting; The Guardian, Fri. 10 Dec. 2010; Link:
https://www.theguardian.com/commentisfree/libertycentral/2010/dec/10/terrorist-blacklisting-un-report-human-
rights.
30
Hoffmann, Julia; Terrorism Blacklisting: Putting European Human Rights Guarantees to the Test;
Constellations Volume 15, Number 4, 543; 2008 (pp. 548).
the 21st century, we cannot and should not extend the means infinite. Basic freedoms and
fundamental rights need to be respected, even though concerning the „war on terror“.