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VII. Airport Pro.ling
A legitimate pro.ling process should be based on statistically established indicators of criminality which are identi.ed through a contrived aggregation of reliable factors. The application of this criterion to airport pro.ling would immediately bring to bear the need to apply nationality and ethnic factors to passenger pro.les. Although one might validly argue that racial pro.ling would entail considerable social and political costs for any nation, while at the same time establishing and entrenching criminal stereotypes in a society, such an argument would be destitute of effect when applied to airport security which integrally involves trans boundary travel of persons of disparate ethnic and national origins. This by no means implies that racial pro.ling is a desirable practice. On the contrary, it is a demeaning experience to the person subjected to the process and a de facto travel restriction and barrier. It is also a drain on law enforcement resources that effectively preclude the use of proven and conventional uses of enforcement.
The sensitive con.ict of interests between racial pro.ling per se, which at best is undesirable in a socio-political context, and airport pro.ling, raises interesting legal and practical distinctions between the two. Among these the most important distinction is that airport pro.ling is very serious business that may concern lives of hundreds if not thousands in any given instance or event. Pro.ling should therefore be considered justi.able if all its aspects are used in screening passengers at airports. Nationality and ethnicity are valid baseline indicators of suspect persons together with other indicators which may raise a ‘.ag’ such as the type of ticket a passenger holds (one way instead of return) and a passenger who travels without any luggage.
Racial pro.ling, if used at airports, must not be assumptive or subjective. It must be used in an objective and non discriminatory manner alongside random examina-tions of non-targeted passengers. All aspects of pro.ling, including racial and criminal pro.ling, should as a matter of course be included in the Computer Assisted Passenger Screening System (CAPS) without isolating one from the other. In this context the now popular system of compliance examination (COM-PEX) is a non threatening, non discriminatory process which transcends the thresh-old debate on “pro.ling” by ensuring a balanced and proper use of pro.ling in all its aspects by examining “non targeted” passengers as well as on a random basis.
Another critical distinction to be drawn between discriminatory and subjective racial pro.ling on the one hand and prudent airport pro.ling on the other is the blatant difference between racism and racial pro.ling. The former is built upon the notion that there is a causal link between inherent physical traits and certain traits of personality, intellect or culture and, combined with it, the idea that some races are inherently superior to others. The latter is the use of statistics and scienti.c reasoning that identify a set of characteristics based on historical and empirical data. This brings to bear the clear difference between “hard pro.ling”, which uses race as the only factor in assessing criminal suspiciousness and “soft pro.ling” which uses race as just one factor among others in gauging criminal suspiciousness.
Article 13 of the Convention on International Civil Aviation of 1944 (Chicago Convention), provides that the laws and regulations of a Contracting State as to the admission to and departure from its territory of passengers, crew or cargo of aircraft, such as regulations relating to entry, clearance, immigration, passports, customs and quarantine shall be complied with by or on behalf of such passengers, crew or cargo upon entrance into or departure from, or while within the territory of that State. This provision ensures that a Contracting State has the right to prescribe its own internal laws with regard to passenger clearance and leaves room for a State to enact laws, rules and regulations to ensure the security of that State and its people at the airport. However, this absolute right is quali.ed to preclude unfettered and arbitrary power of a State, by Article 22 which makes each Contracting State agree to adopt all practicable measures, through the issuance of special regulations or otherwise, to facilitate and expedite navigation of aircraft between the territories of Contracting States, and to prevent unnecessary delays to aircraft, crews, passengers and cargo, especially in the administration of the laws relating to immigration, quarantine, customs and clearance. Article 23 follows this trend to its conclusion by providing that each Contracting State undertakes, to the extend practicable, to establish customs and immigration procedures affecting air navigation in accor-dance with the practices which may be established or recommended from time to time pursuant to the Convention.
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Aviation Security Law 航空安全法(44)
