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From Sniffer Dogs to Emerging Sniffer Devices for Airport Security: An Opportunity to Rethink Privacy Implications?

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Abstract

Dogs are known for their incredible ability to detect odours, extracting them from a “complex” environment and recognising them. This makes sniffer dogs precious assets in a broad variety of security applications. However, their use is subject to some intrinsic restrictions. Dogs can only be trained to a limited set of applications, get tired after a relatively short period, and thus require a high turnover. This has sparked a drive over the past decade to develop artificial sniffer devices—generally known as “chemical sniffers” or “electronic noses”—able to complement and possibly replace dogs for some security applications. Such devices have been already deployed, or are intended to be deployed, at borders, airports and other critical installation security checkpoints. Similarly to dogs, they are adopted for detecting residual traces that indicate either the presence of, or recent contact with, substances like drugs and explosives. It goes without saying that, as with sniffer dogs, the use of artificial sniffer devices raises many sensitive issues. Adopting an ethical and legal perspective, the present paper discusses the privacy and data protection implications of the possible deployment of a hand-held body scanning sniffer for screening passengers at EU airport security checkpoints.

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Notes

  1. For example Der Speigel reported that police in Germany collected the scents of identified protestors, and trained their dogs to trace them (Darnstädt 2007). The practice of gathering, collecting and storing human scent in empty jam jars was also used by Stasi—former DDR secret police. The Communist authorities started researching scent analysis in the 1970s (Darnstädt 2007). As reported by the BBC, China has established a “scent bank” of odours sampled from criminal suspects and from different crime scenes. The archived scents are then presented to police dogs for comparison with odours recovered from fresh crime scenes (BBC Asia–Pacific News 2006).

  2. Cf. Schengen Catalogue. External Borders Control Return and Readmission. Recommendations and Best Practices (EU 2009).

  3. As described by Stockham et al. (2004), “Using scent-discriminating dogs in criminal investigations should be limited to establishing a scent relationship between people and crime scene evidence. Because human scent is easily transferred from one person or object to another, it should not be used as primary evidence. However, when used in corroboration with other evidence, it has become a proven tool that can establish a connection to the crime”.

  4. Marks (2007) cites one report (from the USA) claiming that dogs make incorrect identifications (false positives) 12–60 % of the time. The interval is rather large, yet evidence that the true figure may be at the higher end of it results from another report (from Australia) cited by Marks (2007), which found that on 73 % of the 4,078 occasions (between February 2002 and February 2003) on which dogs indicated the presence of drugs, no drugs could be found in the resultant search. It does not follow from these figures that dogs are unreliable detectors of the presence of the substances they are trained to identify. On the contrary, the Australian study cited by Marks (2007) also found that in over half of the cases in which no drugs could be found, the person searched admitted to having smoked cannabis or having been in the vicinity of people who had smoked cannabis. What this suggests is that the dogs have extremely sensitive noses and can therefore detect extremely small quantities of the targeted substance. However being in possession of extremely small quantities of an illicit substance is not necessarily illegal. The problem, therefore, is that while the dog is capable of detecting the (possibly miniscule) presence of a certain substance, it is not capable of detecting illegality per se (Cf. Rebera and Bonfanti, Sniffing Out Troubles, Working Paper 2013). It is worth noting in this connection another finding of the American report that Marks (2007) cites, namely that “80 % of US bank notes were contaminated with sufficient traces of controlled substances to cause a trained dog to alert to their presence”. Recently, the U.S. Government Administration Office released a report concerning the TSA’s National Canine Programme. Among other things the report recommended the TSA to take actions to comprehensively assess the effectiveness of the deployment of passenger screening canines (PSC), i.e. dogs trained to identify and track explosives odour on a person (GAO 2013).

  5. It should be noted that dogs and artificial sniffers are not the only tools envisioned. Other instruments are likely to be employed in searching out target odours: sniffer bees, moths, wasps, cockroaches and mice (Marks 2008).

  6. Such issues are those generally raised by the following set of framework questions. (1) Does the deployment of olfactory surveillance measures respect or even promote human dignity, personal freedoms, equality, solidarity, democracy, justice, fairness, tolerance, …—or does it jeopardize them by increasing the risk of humiliation, discrimination, stigmatisation, tyranny, isolation, injustice,…? (2) What individual fundamental rights are likely to be affected by the deployment of olfactory surveillance measures? What is the impact of such measures on those rights? Is it beneficial (promotion), negative (limitation) or even both depending on the right concerned? (3) How and to what extent could the deployment of olfactory surveillance measures impact on individuals’ behaviour? Could they generate anticipatory conformity among individuals, self-censorship or self-policing? (4) What kind of societal impact is the deployment of olfactory surveillance measures likely to generate? Would they promote societal welfare, safety and/or economic growth? Would they be equitable in their treatment of all groups in society? (5) What technical (technological design), procedural (operating procedures and personnel training) or other requirements (if any) are necessary to make such measures consistent with ethical principles and fundamental rights? (6) What is the appropriate level of governance of olfactory surveillance measures? In general, it has to be stressed that any security measures which impair the dignity and other fundamental rights of those who should be protected need to be prevented because they are self-contradictory and eventually are also less effective.

  7. SNIFFER, A bio-mimicry enabled artificial sniffer (http://www.sniffer-project.eu).

  8. This study shows that women’s body odour changes across their menstrual cycle.

  9. As described by Marks (2008) in the 1990s the South African police approached a UK based company manufacturing “electronic noses” asking for a device able to detect the “odour signature” of black people. According to a company representative, they could have developed and supplied such a device, but refused (for ethical reasons?). It is worth noting that the company representative explained that ethnic signatures may be quickly obtainable by finding patterns in the odour body signature of different ethnic groups.

  10. As reported by Fox (2012), p. 33 “rites of passage, which mark transitions from one physical, social or economic condition to another (such as the rituals at birth, puberty, marriage and death), involve the symbolic use of odours in many cultures”. “In many non-Western cultures, where the sense of smell is highly valued and odour is considered to be the essence of personal identity, interpersonal ‘exchanges’ or ‘mixing’ of odours are often carefully regulated”. But odours and the sense of smell have played an important role in Western societies too (Smith 2008). For example, in the late 1500s, odour was used to (supposedly) identify witches and warlocks in Europe (Marks 2008).

  11. Just think about the devil and his sulphorous stink. Fundamental spiritual and curative powers were attributed to scents by Christendom. These powers can be seen in the medieval concept of “odour of sanctity” The concept of “odour of sanctity” can be understood to indicate that the individual possessing it is in a state of grace i.e. characterized by the absence of mortal sin. Some canonized saints are said to have died in an odour of sanctity. The concept also refers to the scent present at the time of death and for some time thereafter (Classen et al. 1994). According to McKenzie (1930) the “odour of sanctity” was translated into the formula H6H12O2. Cf. also Wise (2009).

  12. One might argue that, since many of the cultural and social aspects of odours depend on how they have been interpreted by humans in specific social and historical contexts—in other words that these readings are essentially conditioned by socio- and individual psychological elaboration and interpretation—they are therefore (largely) irrelevant when it is a technology, rather than a human, that sniffs and “interprets” an odour. However, one may reply that, even when non-humans analyse and “interpret” odours, social and cultural readings are still at stake. Every technology reflects—to at least some extent—the values and aspirations of its developer and the human (societal, historical, etc.) context of its development. Therefore, technologies are neither wholly objective nor neutral in carrying out their tasks. In addition, one should consider that social and cultural aspects do not concern only odours: they also concern, and partly stem from, the very act of sniffing, irrespective of whether it is a machine, a dog, a person or anything else that does it.

  13. European legislation laying down common standards for aviation security was firstly adopted in 2002 and has been subsequently modified and integrated. The present legal framework consists of: Regulation No. 300/2008 on common rules in the field of civil aviation security (EC 2008); Commission Regulation No. 272/2009 supplementing the common basic standards on civil aviation security laid down in the Annex to Regulation (EC) No. 300/2008 (EU 2009), as amended by Commission Regulation No. 1141/2011 amending Regulation (EC) No. 272/2009 as regards the use of security scanners at EU airports, (EU 2011). The above instruments are coupled with the so-called implementing package containing: Commission Regulation No. 185/2010 laying down detailed measures for the implementation of the common basic standards on aviation security (EU 2010), as amended by Commission Implementing Regulation No. 1147/2011 as regards the use of security scanners at EU airports, (EU 2011) and by Commission Implementing Regulation No. 711/2012 amending Regulation (EU) No. 185/2010 as regards the methods used for screening persons other than passengers and items carried (EU 2012). The cited legal instruments apply to all civilian airports or parts of them located in an EU country. Their provisions also apply to all operators, including air carriers, providing services at the airports.

  14. It is important to stress that aviation security regulations do not deal with the carrying of narcotics since these substances do not pose a “security” threat. However, police and customs officers do screen incoming passengers for narcotics, often using sniffer dogs (according to national regulations).

  15. Airports are designed according to established security standards and organised in different areas where personnel, visitor or passenger access is restricted depending on specific parameters. In the case of passengers, airports are divided into the area before the security control, which is open to all visitors, and the secure area behind the security checkpoints. In order to access the latter area they have to go through a security screening procedure.

  16. EU (2010). Other screening solutions are: hand search, walk through metal detection (WTMD), hand held metal detection (HHMD).

  17. The use of EDDs for security screening is detailed by the EU Commission Regulation No. 573/2010 (EU 2010).

  18. The employment of ETDs is envisaged by Commission Regulation No. 185/2010 (EU 2010). Various explosive trace detection methods and devices are available today (Caygill et al. 2012). Most of them employ spectroscopic approaches.

  19. It goes without saying that the concerned issue arises with regard to any technology or technique adopted to carry out security screening at airports or other critical installations.

  20. The “secure area” (or sterile area) refers to portions of an airport that allow access to aircraft and to which access is controlled. People who enter sterile areas include passengers, flight crew members, and personnel employed by the airport, air carriers, or by companies that conduct business in airports (Mordini 2011).

  21. Art. 21 par 1 of the Charter states: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited” (EU CFR 2007).

  22. The above sniffing procedure is like the one followed by security staff when they screen people with a handheld metal detector. A distinctive sound or/and an LED indicator will inform the screener if a “threat” has been detected.

  23. Indeed, existing chemical sniffers collect odorous particles by touching surfaces.

  24. Neither does it prevent harmful effects on human dignity.

  25. Art. 8 par. 2 ECHR sets out what is called a “limitation clause” making it clear that the right to privacy has a relative nature. Interferences emanating from public authorities, which are “in accordance with the law” and “necessary in a democratic society” in pursuit of one or more of the legitimate aims listed (national security, public safety, prevention of a disorder or crime etc.) are to be considered an acceptable limitation to an individual’s right to privacy. Similar conditions apply to Art. 7 of the Charter as established by Art. 52 par. 1.

  26. The European courts have also elaborated the conditions requisite to justify the limitation of the right to privacy, as per the ECtHR case law, cf. Heringa and Zwaak (2006).

  27. It should be further noted that, while sniffing, the device is likely to collect also the body odour signature of the person being sniffed. As described above, the body odour signature is a biological footprint (odourprint). If considered part of the human body, one might say that gathering the body odour signature—especially when this is done actively and purposely—would thus imply separating it from the rest of the body.

  28. Cf. p. 613.

  29. See supra.

  30. Just think about the case of a passenger being mistakenly found positive by a security check carried out by a sniffer device (or dog) at an airport. The responsibility to decide whether to let him take his plane or not and the associated risk seem higher than in the case that he has been found positive for drugs. If the sniffer is not able to detect the odour of targeted substances properly, the risk of stopping individuals that are not hiding any explosives or illicit drugs will increase significantly.

  31. Relevant information on data protection legislative and other international and European documents can be found at documents http://ec.europa.eu/justice/data-protection/law/index_en.htm.

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Acknowledgments

The Author would like to thank Dr. Bruno Turnheim (one of the guest editors of this special edition), and two anonymous reviewers, for their feedback and suggestions for improvement. This work has been partly funded by a grant from the European Commission: SNIFFER A bio-mimicry enabled artificial sniffer, Grant Agreement No. 285203.

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    Matteo E. Bonfanti

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Bonfanti, M.E. From Sniffer Dogs to Emerging Sniffer Devices for Airport Security: An Opportunity to Rethink Privacy Implications?. Sci Eng Ethics 20, 791–807 (2014). https://doi.org/10.1007/s11948-014-9528-x

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