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4       Ethical concerns with regard to iBorderCtrl




      4.1       Right to Privacy and Protection of Personal Data
Privacy and data protection is a pivotal point and became a priority for policy makers and European
interlocutors to shape the future of the information society and smart products and devices. Thus,
and given the prominence of the issue, the technical and legal development must be reconciled with
ethical / philosophical considerations, since the development and adaption of ethical principles has
for the most parts been concurrent with the development of law in the field. The ethical foundations
of the concept of privacy can be traced back to ancient times, since the earliest surviving version of
the Hippocratic oath included the phrase: “And whatsoever I shall see or hear in the course of my
profession, as well as outside my profession in my intercourse with men, if it be what should not be
published abroad, I will never divulge, holding such things to be holy secrets.”5 A more recent
publication on the concept of privacy and seminal theoretical contribution certainly is Warren and

5
 Hippocrates of Cos, "The Oath". Loeb Classical Library (1923) 147: 298–299. doi:10.4159/DLCL hippocrates_cos-
oath.1923. last accessed on




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Brandeis’ legal and ethical considerations of the right to privacy in 1890.6 It is not merely a
coincidence that the text was written in times of radical change, acceleration of life, industrial
production and the distribution of information via telephone or radio broadcast. Just like at the
beginning of the 20th century we find ourselves in the middle of dramatic changes, where artificial
intelligence, the Internet of Things, Smart Traffic and Big Data create opportunities that were still
inconceivable some years ago. All the advantages of modern information technologies, however,
cannot conceal the fact that there are disadvantages and risks as well and we are already at a point
where traditional concepts of privacy and its ethical /philosophical fundament dealing with the
vulnerabilities of persons in digital societies seemingly require sensible adjustments. Privacy, the
protection of personal information and its philosophical justification after all remains a complex
issues, due to its interrelation to various other areas of law and philosophy dealing with the protection
of individuals.
The CFREU contains several privacy and data protection related provisions which are relevant in the
context of iBorderCtrl. Art. 7 (Respect for private and family life) reads: “Everyone has the right to
respect for his or her private and family life, home and communications” Furthermore Art. 8
(Protection of personal data) stipulates that “Everyone has the right to the protection of personal data
concerning him or her”.7 And Art. 8 (2) CFREU determines that personal “data must be processed
fairly for specified purposes and on the basis of the consent of the person concerned or some other
legitimate basis laid down by law. Everyone has the right of access to data which has been collected
concerning him or her, and the right to have it rectified.”
The right to privacy also does exist on EU- member states level as numerous constitutions implicitly
or explicitly grand or respect the right to privacy. In the case of Germany for instance the German
Federal Constitutional Court interpreted that the German Constitution (“Basic Law”) includes a right
to “informational self-determination” derived from Art. 1(1), 2(1) Basic Law. The term was first used
in a German constitutional ruling in connection with personal information collected during a census
in 1983. In particular the German Constitution Court held that “… in the context of modern data
processing, the protection of the individual against unlimited collection, storage, use and disclosure
of his/her personal data is encompassed by the general personal rights of the German constitution.
This basic right warrants in this respect the capacity of the individual to determine in principle the
disclosure and use of his/her personal data. Limitations to this informational self-determination are
allowed only in case of overriding public interest.”8
Because of this, we shall in the following further discuss the underlying ethical and philosophical
implications of privacy as well as aspects of fundamental rights implications relevant in the context
of iBorderCtrl. Most prominently and also closely connected with the ethical / philosophical
foundation of privacy are the issues of equality or equal treatment and human dignity.




6
 Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, Harvard Law Review, Vol. 4, No. 5 (1890), pp. 193-
220.
7
    Art. 8 (1) CFREU
8
    In German: BVerfGE 65, 1 - Volkszählung




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      4.2       Unequal Treatment
            4.2.1       Legal Background
Although this deliverable has an ethical focus, it must be borne in mind that ethical considerations
may (or should) also be tested against a legal background; that, in other words, ethical considerations
may considerably overlap with a legal fundament and constitutional framework.

            4.2.2          Introduction
The concept of equality and non-discrimination are very complex concepts with numerous
ramifications and consequences. This topic is both challenging from a legal as well as an ethical point
of view and leaves room for considerable debate over the meaning and its justification.
Therefore, we shall first explain the legal background and from there will explain and develop the
meaning of equality or equal treatment and/or its antagonist inequality or unequal treatment. In the
context of the project iBorderCtrl, it is vital to have a sound understanding of the concept in order to
assess whether the technology or technical devices used in iBorderCtrl or in smart border scenarios
in general, constitute a case of unequal treatment (i.e. if certain groups or individual group members
are treated differently, in comparison to similar groups or similar individuals).
If a case of unequal treatment is established, this does not mean that automatically every case of
unequal treatment constitutes a violation of human rights and is therefore rendered illegal. But in a
second step, it needs to be established, whether such action or omission occurs without justification
or factual reason.

                   4.2.2.1      Legal sources of non-discrimination and equality
As a starting point it may be mentioned that from the various legal sources pertaining to the concept
of equality there are three categories of legal sources, which are particularly relevant for the concept
of equality and non-discrimination in Europe. EC law and European human rights law as well as the
constitutional traditions of the European Member States.
The Charter of Fundamental Rights of the European Union (CFREU, 2000/C 364/01), deals with
equality in chapter III, i.e. Art. 20-26. Of particular importance are Art. 20 (Equality before the law:
Everyone is equal before the law) and Art. 21 (Non-discrimination) which reads:
1. 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.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty
on European Union, and without prejudice to the special provisions of those Treaties, any discrimination
on grounds of nationality shall be prohibited.
Similar to the CFREU the European Convention on Human Rights (ECHR) prohibits discrimination in
Art. 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.”)
On top of this constitutional and legal traditions of the member states must be considered. Almost all
EU / EEA Members States do have constitutional provisions concerning equality and/or
discrimination. For example Art. 3 (Equality before the law) of the German Basic Law reads:




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(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights. The state shall promote the actual implementation of equal
rights for women and men and take steps to eliminate disadvantages that now exist.
(3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and
origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.
From the cited above, it may not be assumed that discrimination, particularly on the grounds
mentioned is in any case illegal, but rather that a legal justification is required for any discriminatory
measure. Similar to the concept of proportionality in data protection, on may argue that, in order to
assess the proportionality of a legislative measure discriminating a certain groups, the rationale of
such measures must be tested against the possible violation of such groups or individual group
member’s human/fundamental rights. The more an individual is affected in his/her fundamental
rights, the more such individual may be unable to avoid or circumnavigate a situation in which his/her
fundamental rights may be violated, the higher or stricter are the requirements as to the legal
justification of a measure that may be regarded discriminatory.
The legal concept of proportionality is (beyond data protection) well established and recognised as
one of the general principles of European Union law.9 It is also recognised in Article 5 of the EC Treaty,
stating that "any action by the Community shall not go beyond what is necessary to achieve the
objectives of this Treaty".
Proportionality of a measure could be established by means of a three-step test. Firstly, “suitability”
of a measure must be ascertained. Suitability test defines whether a measure (involving
discrimination of certain groups or individuals) is reasonably likely to achieve its objectives. Secondly,
“necessity” of a measure must be tested. The necessity test evaluates whether there are other less
restrictive means capable of producing the same result. Thirdly, “proportionality” strictu sensu must
be established. This means that the scale of discrimination is weighed against the importance of the
objectives pursued. Regarding the last step of the three-step-test it must be emphasised, that from an
ethical point of view, it would be more difficult to justify a discriminatory measures based on sex, race,
colour, language, religion, political or other opinion, national or social origin and association with a
national minority, property or birth.




9
  See Federation Charbonniere de Belgique v High Authority [1954] ECR 245 Case C8/55[11]; Internationale
Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125 Case 11/70; R v Minister of Agriculture,
Fisheries and Food ex parte Fedesa [1990] ECR 1–4023 Case C-331/88




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      4.3        Human Dignity
             4.3.1       Legal Background

                    4.3.1.1       Introduction
Human dignity describes the concept of an individual’s or group’s right to be valued and respected.
The concept may by many people be understood intuitively and, very generally, expresses the
requirement of fair and ethical treatment of every human being who shall be endowed with inherent
and inalienable rights.
From an ethical perspective individual’s or group’s dignity may be violated in multiple ways. Aside
from the most obvious examples of a violation of human dignity such as torture, slavery, bonded
labour or putting human beings into inhuman living conditions, there may also be cases where an
interference with human dignity is less obvious and where a violation of human dignity may have
numerous facets and dimensions. For example to humiliate i.e. embarrass a person and subject them
to public ridicule. Furthermore, a person may be “dehumanized” that refers to an act with which
individuals or groups are stripped of their human characteristics or treated as less valued human
beings. Human dignity may also be violated by degradation, where the inherent value of a human
being is deprecated. This even may be a violation of human dignity if it is done with consent, which at
first sight seems like an autonomous decision, but in reality is an act with which an individual
effectively “surrenders” his/her autonomy and human dignity. Furthermore, and of particular
emphasis within iBorderCtrl, shall be the dimension of instrumentalization an objectification.
Objectification means to reduce a human being to an object or thing for example in order to use
someone to reach other goals, to treat someone as if he/she does not possess physical or psychological
boundaries, to treat someone with no concern for their feelings and individual experiences.
Furthermore, autonomy and self-determination shall be mentioned in this context and an act which
displays a lack of respect for a person’s autonomy may be seen as a violation of human dignity as well.



                    4.3.1.2       Legal Sources of Human Dignity
The different facets of human dignity that have been briefly mentioned above, pose certain challenges
and difficulties for a legal interpretation and approach to human dignity. As a legal concept human
dignity is hard to describe and it may safely be argued that the concept does not provide a universal
and well established basis for judicial decision-making and judicial review. In a legal sense there
probably is little common understanding of what dignity requires substantively within a certain
jurisdiction or even more difficult across jurisdictions in international public law and human rights
context. The value and meaning of human dignity rather depends on the context in which it occurs
and may vary significantly among different jurisdictions and “instead of providing a basis for
principled decision-making, dignity seems open to significant judicial manipulation, increasing rather
than decreasing judicial discretion.”10 Despite the numerous dimensions and differences regarding
the interpretation of all the facets of the concept it must not be omitted that the term human dignity
has of course made its mark in various international treaties, constitutions and other legal texts and
judgments.


10
  Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, EJIL (2008), Vol. 19 No. 4 ,
655 – 724, 655.




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Most prominently and a source of inspiration for subsequent legal text emanates from the use of
dignity in the Universal Declaration of Human Rights (UDHR). The Preamble already mentions dignity
on two occasions and: “whereas recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and peace in the
world …“ and: “whereas the peoples of the United Nations have in the Charter reaffirmed their faith
in fundamental human rights, in the dignity and worth of the human person and in the equal rights of
men and women and have determined to promote social progress and better standards of life in larger
freedoms”. Art. 1 reads: “all human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Moreover, there are several further occasions where the term dignity is used in the UDHR.11
The concept of dignity is not restricted to the sphere of international human rights law, but has
subsequently been included into regional human rights instruments.12 Although it was not included
in the text of the European Convention on Human Rights (ECHR), it has been picked up in several later
Council of Europe conventions, e.g. notably the Revised European Social Charter13 and the Convention
on Human Rights and Biomedicine.14
For the territory of the European Union the concept of human dignity is reinforced by the EU's charter
of fundamental rights (CFREU) which provides in its Preamble: “Conscious of its spiritual and moral
heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality
and solidarity”. CFREU makes the protection of dignity an explicit commitment and provides in Art.
1: “Human dignity is inviolable. It must be respected and protected.” It goes on with Art. 2 (Right to
life), Art. 3 (Right to the integrity of the person), Art. 4 (Prohibition of torture and inhuman or
degrading treatment or punishment) and Art. 5 (Prohibition of slavery and forced labour) which may
be viewed as further manifestations and facets of the concept of human dignity.
The concept of human dignity has furthermore been incorporated into national constitutions. In
particular, the German constitution and its interpretation by the German Constitutional Court was a
strongly influenced subsequent national European constitutions, especially after the fall of the so
called “iron curtain”.15 Art 1(1) of the German Basic Law (Grundgesetz) reads: “Human dignity shall
be inviolable. To respect and protect it shall be the duty of all state authority.” Furthermore, it must
be mentioned that the concept of human dignity has be subject to judicial interpretation in various
cases brought before the German Constitutional Court (Bundesverfassungsgericht). In a judgment
delivered in 2006, the Constitutional Court had to weigh the concept of human dignity against a law
which proposed the shooting-down of any unidentified aircraft that, carrying hostages, might pose an
imminent threat to certain important ground structures and/or a large number of civilians. The

11
   e.g. Art. 22 reads: everyone, as a member of society, has the right to social security and is entitled to realization,
through national effort and international co-operation and in accordance with the organization and resources of each
State, of the economic, social and cultural rights indispensable for his dignity and the free development of his
personality”; Art. 23(3) reads: “everyone who works has the right to just and favourable remuneration ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social
protection”.
12
 Pls. see Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, EJIL (2008), Vol. 19
No. 4 , 655 – 724, 671.
13
     European Social Charter, ETS No. 163 (1996), Preamble, Art. 26.
14
     Convention on Human Rights and Biomedicine, CETS No. 164 (1997), Preamble, Art. 1.
15
 Pls. see Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, EJIL (2008), Vol. 19
No. 4 , 655 – 724, 673.




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Constitutional Court held the law unconstitutional arguing that the decision to shoot down an
unidentified aircraft and thereby sacrificing hostages on board of the aircraft may compromise human
dignity. In particular the court held: "The duty to respect and protect human dignity generally forbids
making any human being a mere object of the actions of a state. Any treatment of a human being by
the state that - because it lacks the respect for the value that is inherent in every human being - would
call into question his or her quality as a subject, his or her status as a subject of law, is strictly
forbidden."16

         4.4        Risk of Stigmatization and the Impact of Technology
                4.4.1   Definition and Classification of False Positives & False
                Negatives in the Legal Framework




16
     BVerfG, Urteil des Ersten Senats vom 15. Februar 2006 - 1 BvR 357/05 - Rn. (1-156), Rn. 121.




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4.4.2   Ethical implications of false positives




4.4.3   Impact on the Individual vs. Impact on Other Travellers




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17
        See,      Handbook       for     Schengen   Border   Guards,  p.    57      f.,   available   at
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2015010%202006%20INIT.p 57.




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4.4.4   Data Quality and Falsified Information




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