Deputy-Ombudsman issues reminder about protecting privacy and the limits on exercise of public power
Deputy-Ombudsman Petri Jääskeläinen considers the objective of security checks, which is to prevent prohibited substances and objects from being taken into the controlled area of an airport and aircraft, to be very important. This objective, which is based on the norms of EU law, must not be jeopardised, but the requirements that the Constitution of Finland sets with respect to protection of privacy and the exercise of public power must be taken into account in national implementation of inspection procedures.
The Deputy-Ombudsman has pointed out that it is important to protect privacy in airport security checks. If a check requires a greater amount of examination than is usual, the security inspector must ask the passenger whether he or she would like the matter to be discussed in a separate space. In any case, the security inspector must ensure that third parties do not see the contents of a bag being examined or overhear a conversation that belongs in the sphere of protection of privacy.
Health-related information is one of the things that are required by law to be kept secret. Therefore an inspector must not ask unnecessary questions about, for example, a passenger's medication. It suffices to enquire whether a medicine is intended for treatment of an illness and if the dosage instructions require that the medicine be taken during the flight. The Deputy-Ombudsman has informed the Finnish Civil Aviation Authority and Finavia (the State-owned company that operates airports) of his views regarding the importance of protecting privacy so that the guidelines on security inspections can be revised.
A complaint to the Ombudsman was made by a person whose suitcase had been opened in view of other passengers in a security check at Helsinki-Vantaa Airport and it had been possible for everyone to see the personal items in it, such as medicines. In addition, the inspector had enquired, within earshot of everyone, what the passenger's liquid medicines were for.
Limits on the powers of a private security inspector
In conjunction with the complaint, the Deputy-Ombudsman decided to investigate more generally how security checks are conducted in accordance with the norms of EU laws and the Aviation Act. In addition, he examined, arising from a newspaper article, the introduction of a personal scanner at Helsinki-Vantaa Airport.
Security checks are usually taken care of by Finavia's own personnel at the airports it operates, but at the biggest ones this function has been either entirely or partly outsourced. At Helsinki-Vantaa Airport, for example, four different companies are responsible for these checks. In addition, practical responsibility for the conduct of security checks in two localities resides with private airport operators.
Deputy-Ombudsman Jääskeläinen notes that a security inspector exercises public power when intervening in the personal integrity that the Constitution safeguards. According to the Constitution, a task involving significant exercise of public powers can only be delegated to public authorities.
A further matter to which the Deputy-Ombudsman drew attention was that regulation of responsibility for arranging security inspections is somewhat defective in that the legislation concerning Finavia does not specifically provide for this public administrative task.
Problems with use of personal scanner
In the view of the Deputy-Ombudsman, it is relevant to assess whether the use of a personal scanner is compatible with the Constitution when security checks are conducted by private inspectors acting with the permission of the Finnish Civil Aviation Authority.
Because a quite accurate image of a person?s naked body is revealed when a scanner is used, the Deputy-Ombudsman assessed whether scanning can be equated to stripping. If that were so, it would not be possible for scanning to be done by private security inspectors. However, the Deputy-Ombudsman took the view that scanning is a less humiliating measure than stripping, because nakedness is revealed in a picture and not in actuality. In addition, the passenger's consent to be scanned is always requested and can be refused.
For these reasons, the Deputy-Ombudsman takes the view that personal scanning is not in conflict with the Constitution to the extent that his intervention in the matter would be justified, at least at this stage. The permanent use of scanning devices is still being studied in EU institutions.
By contrast, something that the Deputy-Ombudsman has intervened in is the fact that a personal scanner may have been used by a person of a different sex than the person scanned. Passengers have not been proactively informed of this. The Deputy-Ombudsman is of the view that they should be told, because it can be of relevance to whether or not they consent to being scanned. Something that must also be emphasised when security inspectors are being trained is that passengers have the right to freely choose the inspection method and that different methods are equal in status. The choice must not lead to negative consequences for the passenger.
Tasks of the Ministry of Transport and Communications and the Finnish Civil Aviation Authority
Regulation of the inspection methods permitted is not included in the sphere of national decision making; instead, the regulations on them are contained in the EU security directive and the decrees issued by the Commission under its provisions. Therefore attention must be paid in the Transport and Communications Ministry and the Finnish Civil Aviation Authority to ensuring that methods adopted from among the permitted alternatives do not lead to significant exercise of public powers in security checks conducted by private parties, which would be contrary to the Constitution.
Deputy-Ombudsman Jääskeläinen has asked the Ministry of Transport and Communications, the Finnish Civil Aviation Authority and Finavia to inform him, by 31.12.2009, of what measures have resulted from his decision.
Additional information will be provided by Principal Legal Adviser Riitta Länsisyrjä, tel. +358 (0)9 432 3363.