President. - The next item is the report (A6-0222/2009) by Mrs Ludford, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, on the problem of profiling, notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control [2008/2020(INI)].
Sarah Ludford, rapporteur. − Madam President, over the past decade, laws and practices have been introduced enabling the retention and exchange of huge volumes of personal data. Currently the EU itself is proposing a number of measures that facilitate profiling, a technique of pulling together data from various sources in order to make a sort of template against which are identified those people whose characteristics, behaviour or associates seem suspicious and who merit further screening as likely perpetrators of crime or terrorism.
There has also been a move in policing towards a predictive and preventive approach which, while not without value in some circumstances, can lead to repressive measures against innocent people based on stereotyping, often on the basis of race or even religion.
The reason I am concerned about profiling and data-mining is because they depart from the general rule that law-enforcement decisions should be based on an individual’s personal conduct. The danger exists that an innocent person may be subject to arbitrary stops, interrogations or travel disruption. Then, if that flagging of them as a person of interest is not promptly removed, longer-term restrictions could follow, such as refusal of visas and entry, bans on employment or even arrest and detention.
In a world of increasing international exchange of data, the identification of someone as a person of security or policing interest, if not corrected, could have not only inconvenient or expensive but indeed appalling consequences. One need only remember that Canadian torture flight victim, Maher Arrar – on whose horrendous experience the film ‘Rendition’ was based – was picked up due to profiling based on people his brother happened to know; having done nothing himself to merit suspicion, he nonetheless spent seven months in a Syrian torture dungeon.
The report I am presenting to you has benefited greatly from the considerable input of the shadow rapporteurs, whom I warmly thank. It outlines human rights, data protection and non-discrimination standards in an attempt to uphold two basic principles for any profiling exercise to meet: that repressive consequences should be based on individual behaviour, and that the principle of equality under the law should be upheld.
Not all profiling raises legal objections. We are all familiar with thrillers where the psychologist is called in to draw up a criminal profile of the murder suspect; and if a witness gives a clear description, a profile – of a bank robber, let us say: white, male and 30 – it would be nonsense to arrest someone who was Asian, female and about 50.
The most obvious risk of profiling is on the basis of ethnicity or race. If used by police officers as the only basis of deciding whom to stop, search or arrest, it is lazy, misguiding stereotyping, which amounts to illegal discrimination against minorities.
There is much concern about the victimisation of Roma people in this way. In my own city, London, the impact on young black men has led to tougher guidelines and safeguards – none of which, it must be stressed, should impede the intelligence-led investigation of crime.
Besides concerns regarding legitimacy, I strongly question the effectiveness of profiling. To keep looking for suspicious people on the basis of looks or behaviour can distract from the search for those who are really dangerous. There is also the risk of the real criminals adapting to the profile by using innocent-looking people as drug mules or suicide bombers or by changing travel routes away from those monitored.
Counterterrorism efforts focus the spotlight on Asians, especially those of Pakistani origin. Thirty-two per cent of British Muslims report being subject to discrimination at airports. There is a great risk of alienating these people, who may then end up not cooperating with the police, ultimately hindering security.
This report therefore asks for European or national legislation on profiling to be brought in compliance with existing European law and international treaties. If possible, all safeguards for profiling should be drawn together in a single legal instrument.
Besides the legal assessment, further studies should be conducted into the proportionality and effectiveness of profiling. The Fundamental Rights Agency and the European Data Protection Supervisor, in their respective capacities, should play a key role in those studies.
Finally, if profiling is to be used legally and fairly as a means of contributing to the maintenance of security, a coherent and just legal framework must be established.
László Kovács, Member of the Commission. − Madam President, on behalf of the Commission I would like to welcome this initiative by Parliament to bring the issue of profiling, notably on the basis of ethnicity and race, in counterterrorism, law enforcement, immigration, customs and border control, to the centre of attention at European level.
The Ludford report represents a very good platform that contributes further to this issue by launching a broad discussion and suggesting how to tackle this problem. I want to underline that already existing data protection legislation ensures a high level of protection of personal data – including sensitive data such as information on ethnicity or race – and applies regardless of the technology used. Therefore, it is obvious that general data protection principles apply to profiling as one of the ways of data processing as well.
The Commission strongly believes that unjustified or unnecessary ethnic profiling is an unfair and prohibited practice, even when this is done for law-enforcement purposes or in connection with immigration, customs and border control, and is contrary to the fundamental values of the European Union.
Under important instruments proposed by the Commission – like the Schengen Border Code, Eurodac, SIS, VIS – the use of unjustified ethnic profiling techniques is not authorised. For example, as regards border controls, the provisions of Article 6 of the Schengen Borders Code require that border guards execute checks with no discrimination against travellers on grounds of racial or ethnic origin, religion or belief.
I would also like to mention the activities of the Fundamental Rights Agency in this field. The Agency is about to present a good practices handbook for combating and preventing ethnic profiling. The Commission supports the inclusion in the 2010 work programme of the agency of joint training with FRONTEX, where the said handbook could be used. The Commission also supports the inclusion in the 2010 work programme of the agency of a project on implementing Article 6 of the Schengen Border Code that aims at collecting data.
Finally, the Commission welcomes the minorities and discrimination survey that was presented yesterday. The sections on law enforcement and border control provide us with further and recent data on experiences of ethnic profiling. The Commission will, of course, carefully study the results of the Minorities and Discrimination Survey, which will be published chapter by chapter through the year. But already now we can conclude that racism and xenophobia are still persistent phenomena in the European Union and that they affect the lives of members of ethnic minorities.
The Commission agrees with the draft report that processing of data for statistical purposes, including ethnicity, race or origin, could be used to identify indirect discrimination or unjustified law enforcement practices. However, this angle has to be properly assessed. Therefore, the Commission is looking into the opportunity to ask the Article 29 Data Protection Working Party to prepare an opinion on the processing of personal data for statistical purposes, including ethnicity, race or origin.
The Commission is also following closely the activities of the Council of Europe on the draft Recommendation on Profiling. The Commission is about to launch a request to the Council for a mandate to be authorised to negotiate this draft recommendation.
As regards the need for a legal framework to define profiling, the Commission believes that the relevant EU legislation on border management and data protection is adequate to protect fundamental rights. Indeed, it requires that any processing activity has to be grounded on a specific, recognised legal basis and respect particularly the principles of necessity, proportionality, purpose limitation and accuracy. It is subject to supervision by independent public authorities. Currently the framework also contains strict rules relating to the processing of sensitive personal data or automated decisions. All these principles also apply to profiling as one of the ways of performing processing of personal data.
The Commission is committed – and I am personally committed – to fighting racism and xenophobia to the full extent of the powers conferred by the Treaties, and this includes cases where racism comes from public authorities. The Commission is determined to reinforce our policy to fight racism and xenophobia in the Stockholm context, which should include tackling the issue of ethnic profiling.
Again, on behalf of the Commission, I very much welcome the draft report, and I look forward to its adoption in plenary tomorrow.
Claude Moraes, on behalf of the PSE Group. – Madam President, as Socialists we fully support this report and contributed to it because we believe it is the first time in this Parliament that the political, legal and moral debate surrounding ethnic profiling and its effects on ordinary people has been raised properly.
We believe that predictive profiling and data mining are issues which have long been unexamined and I very much welcome the Commission’s positive approach to both recognising this issue and understanding the possible indirect discrimination that can be caused by ethnic profiling.
The Socialists hope that if this report is adopted tomorrow and following the upcoming Council of Europe recommendation on profiling, there will be sufficient political impetus to address this issue at the highest levels. Why? For my constituency of London and for myself personally, I can say that I know what ethnic profiling means. It means being stopped and searched regularly because of how you look, rather than being stopped and searched because of proper intelligence, proper policing, with proper procedures put into place.
This kind of profiling is a waste of resources. It does not catch terrorists; it does not catch criminals. What it does is target indirectly or directly those who are vulnerable, who have an ethnic background which is just the wrong background
This can lead – and I think people should understand this – to strip searches and other abuses which we have seen. This report is an important step forward in protecting people against something which so far has been unexamined, but I am glad that Sarah Ludford had now raised it in Parliament and we will fully support this report tomorrow.
Carl Schlyter, on behalf of the Verts/ALE Group. – Madam President, I would like to thank Sarah Ludford for her report. Kathalijne Buitenweg cannot be here, but I will represent her views.
I must begin by asking: what is a terrorist? What kind of feeling do terrorists create? They create insecurity. Terrorists also make everyone vulnerable, and prevent them from pursuing their life as they want to.
Then you look at the anti-terror legislation with profiling and you see it creates insecurity and it creates problems for people living their daily lives. You cannot combat terrorism with anti-terror laws that create the same feelings of insecurity.
I think the European Court has been very clear on this, saying that this should be banned. We can see that it is neither efficient nor legal. The Carter Center in the US has showed it was not efficient. The German surveillance scheme on 18-40-year-old Muslim men in Germany was not efficient. It does not work, and I very much hope that we can take away the last exemptions allowing airports and harbours and so on to use these inefficient methods that make people feel bad.
And how can you say that you will have a high level of protection when people leave CDs with 20 million people’s data on them lying in cafés, and when we know how easy it is to hack into computers? I did it myself as a kid actually.
So I think this report is important. The Council needs to adapt its logic and spend the resources efficiently, targeting specific individuals and focusing the time on them instead of going for ethnic registration, which is in complete violation of any human rights standards.
Emine Bozkurt (PSE). – (NL) First of all, I would like to thank Baroness Ludford for this fine report. The report should have been even stronger, but it represents progress in the debate on this subject.
Sometimes ‘profiling’ can be necessary, but such cases must be clearly delineated and protected against abuse. The possibilities for storing, exchanging and interpreting information have, in recent years, increased faster than the necessary limits which democracies set for themselves in this regard. The US security services have not gained better or more reliable information as a result of data mining and investigation based on profiling, but instead primarily a heavier workload. A security agent compared it aptly with filling a water glass with a fire hose, in other words, particularly inefficient.
Naturally, profiles based on ethnic origin have been used for years, even if we generally call it by another name. Even I, all of 1.60 m tall, and thus hardly the most threatening physique, have been regularly taken aside at customs. A minor personal irritation, but many people who scrupulously abide by the law experience this inconvenience not regularly, but systematically. Such people get the message from our society that they are always suspect, less worthy and unwelcome. We are not going to catch true criminals, who come from every population group, by this method.
László Kovács, Member of the Commission. − Madam President, the interventions of the different MEPs show the importance of the issue of profiling and the respect of fundamental rights and the attention paid to it by Parliament.
The report gives an excellent picture of the questions raised by the use of profiling techniques, in particular when they are based on ethnicity, race, nationality or religion for law enforcement, immigration or border control purposes.
The Commission follows closely – and will continue to follow – the problems posed by the use of profiling in general and, in particular, in the sectors expressly referred to in the report.
The Commission is currently launching a consultation on the challenges posed by new technologies to data protection. Its results should provide the Commission with elements that will feed its reflection and guide it when dealing with the problems that profiling can pose in the areas of justice, freedom and security.
The recent results published by the Fundamental Rights Agency on minorities and discrimination in the EU, which the Commission welcomed yesterday, show that racism and xenophobia are persistent phenomena in the European Union and that they affect the lives of our minorities.
The Commission has to carefully study the results of this survey in order to decide the way forward. Again, I very much welcome the draft report, and I am looking forward to its adoption in plenary tomorrow.
Sarah Ludford, rapporteur. − Madam President, I very much welcome the Commissioner’s positive response. I think some of the things he has talked about will be extremely useful – the Fundamental Rights Agency, guidance on ethnic profiling, the Commission working with the Council of Europe on its recommendation, and the suggestion that the Article 29 Working Party can be asked for guidance.
I would like to push the Commission a little bit further, though, on focusing on the specific problems of profiling. After all, we do have a recommendation on the table for profiling in the context of PNR data, so there are special problems.
I would like to thank very warmly the small but select band of colleagues who have contributed to the debate. I think two things came out strongly: first of all, the fact that so-called ‘security’ measures can create insecurity and, secondly, that they can be a waste, instead of a targeting, of resources. So we are talking here about effectiveness as well as civil liberties.
President. - The debate is closed.
The vote will take place tomorrow, Friday, 24 April 2009, at 12 noon.