FP7-SECT-2007-217862
DETECTER
Detection Technologies, Terrorism, Ethics and Human Rights
Collaborative Project
Moral Risks of Profiling in Counter-Terrorism
Deliverable 5.4 Draft
Due date of deliverable: 30/11/2011
Actual submission date: 12/12/2011
Start date of project:
1.12.2008
Duration: 36 months
WP05 Professor Tom Sorell
Author(s): Katerina Hadjimatheou
Project co-funded by the European Commission within the Seventh Framework Programme
(2002-2006)
Dissemination
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1
Table of Contents
Moral Risks of Profiling in Counter-Terrorism ........................................................................................ 2
Executive Summary............................................................................................................................. 2
Introduction: Counter-terrorism profiling in Europe .......................................................................... 4
Defining profiling ................................................................................................................................ 5
Issues in the definition of profiling ................................................................................................. 5
Examples of profiling in counter-terrorism..................................................................................... 7
Four distinctions between profiling in counter-terrorism and traditional or targeted policing .... 8
A proposed definition of profiling ................................................................................................. 10
The ‘problems’ with profiling: the evidence-base for profiling ........................................................ 12
Recommendations 1&2: Predictive versus descriptive and precautionary profiling ................... 12
Recommendations 3-5: The profiling of identity versus the profiling of conduct............................ 17
Profiling ethnicity and discrimination ........................................................................................... 18
Profiling ethnicity and the risk of prejudice .................................................................................. 19
Profiling ethnicity and reciprocity ................................................................................................. 22
Profiling people, places, and things .................................................................................................. 22
The profiling of things ................................................................................................................... 23
The profiling of places ................................................................................................................... 25
Conclusion ..................................................................................................................................... 27
Moral Risks of Profiling in Counter-Terrorism
Executive Summary
1. Profiling can be defined as the systematic association of sets of physical, behavioural,
psychological or ethnic characteristics with criminality and their use as a basis for making
public security or law-enforcement decisions.
2. Profiling in counter-terrorism differs from targeted policing in four main ways: it relies
primarily or mainly on associations and generalisations rather than specific evidence; it relies
on ethnic generalisations as evidence of criminality; it is used primarily as a preventive or
‘predictive’ measure; it is used by a range of security agents including border guards, airport
and transport security officers, and police officers.
3. Profiling raises two main categories of ethical risk: risks to privacy and risks to equality.
4. The sources of the privacy and equality risks arising from profiling are its tendency to rely on
generalisations and associations and its tendency to profile for ethnicity. The fact that a
2
5.
6.
7.
8.
9.
10.
11.
profile is used predictively is less indicative of ethical risk than the fact that it is based on
generalised, rather than specific evidence.
Both predictive profiling and descriptive profiling are justifiable if they are based on
evidence that amounts to a relevant reason for imposing whatever measure of suspicion
follows. In both descriptive and predictive profiling, the extent of the invasion of privacy
should be proportionate to both the relevance of the evidence and the gravity of the harm
prevented.
Profiles based entirely on generalisations (speculative profiles) should only be used in
exceptional or limited circumstances. Speculative profiles are more likely to be justified
when used in highly public, high-risk environments such as airports.
Precautionary profiling is profiling that is used to identify people who are potential criminals,
not those who are thought currently to be engaged in criminal activity. Precautionary
profiling is unjustified when it leads to intrusive police measures.
Ethnic and other identity traits can be used legitimately in terrorist profiles. But they can
only be considered reasons for excluding people from suspicion of a crime; they cannot
provide an independent reason for conferring suspicion.
The risks to equality of the profiling of ethnicity can be reduced in the following four ways:
Profiles including ethnic traits should always be ‘written’ or ‘formal’, rather than left to the
discretion of individual officers. Profiles that select discriminated-against individuals for
suspicion should as far as possible be applied in non-visible or discreet ways, to minimise the
risk that the measure will humiliate those profiled and encourage prejudice towards them.
Profiling should, as far as possible, be used in ways that provide a net benefit, in this case in
terms of security, to the ethnic group profiled. When profiling is used against some ethnic
groups it should be used against all ethnic groups similarly situated.
The profiling of things raises very few of the ethical and human rights risks relating to privacy
and equality that are raised by the profiling of people.
The profiling of places is less likely to raise ethical concerns than the profiling of people.
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Introduction: Counter-terrorism profiling in Europe
The EU position on the use of profiling as a counter-terrorism technique has shifted significantly in
the last 10 years. In 2002, in the aftermath of the terrorist attacks in the USA, the Council of the
European Union published its Recommendation on the Development of Terrorist Profiles. This was
the first EU-level document to attempt to regulate the use of profiling as a counter-terrorism
technique. The main aim of the Council’s Recommendation on the Development of Terrorist Profiles.
is to encourage profiling by EU police forces. It presents terrorist profiling as a knowledge-building
technique that can help police to predict which kinds of people are likely to be or to become
involved in terrorist activities. It promotes profiling as a vital element of the EU’s counter-terrorism
effort and it calls upon those EU police forces to develop ways of using it and to exchange
knowledge and best practice with other EU forces.
The most recent EU documents addressing the issue of profiling do not reflect this optimism and
enthusiasm about the potential security benefits of profiling. Instead, they advise caution against the
use of profiling. They also call on security agencies to ensure that the security benefits of any new
programme of profiling are demonstrated rather than assumed.1 Together, these documents
identify two main categories of ethical risk arising from the use of profiling: risks of unjustified
interference with privacy and risks to equality.
The analysis in D5.1 established a liberal ethical framework for analysing the justice of privacyinvading counter-terrorism measures. Based in Kantian theory, that framework provides an account
of privacy as essential to an individual’s ability to deliberate about and choose life plans free from
other people’s interference. The value of privacy is such that interferences by the state can only be
justified in order to prevent serious crime, such as terrorism. To the extent that it aids the
prevention of serious crime, profiling as a method of counter-terrorism is, in principle, morally
permissible. However, it is only justified if it is evidence-based. Profiling that is based on facile
stereotyping or prejudice both violates the principle of equality and is likely to be ineffective.
This deliverable develops the analysis in D5.1, primarily in relation to the risk of discrimination, as
this is identified in European Parliament’s 2009 Recommendation on the problem of profiling,
notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration,
customs and border control. Of the four most recent documents regulating profiling at the EU level,
only the European Parliament’s Recommendation on the Problem of Profiling attempts to identify
the full range of moral and legal risks arising from the use of profiling, and to recommend ways
in which European jurisdictions might address them. This document distinguishes between
profiling and other, ‘targeted’ law enforcement practices. It encourages legal and political
convergence on a single definition of profiling that reflects this distinction. It also proposes further
distinctions between justifiable and unjustifiable bases for and uses of profiling. Finally, it draws on
* The author would like to thank Daniel Moeckli for his helpful comments on this paper.
1
Fundamental Rights Agency of the European Union, Discriminatory Ethnic Profiling: A Guide, 2010.
Recommendation CM/Rec(2010)13 of the Committee of Ministers to member states on the protection of
individuals with regard to automatic processing of personal data in the context of profiling, 23 November
2010. European Parliament Recommendation on the problem of profiling, notably on the basis of ethnicity and
race, in counter-terrorism, law enforcement, immigration, customs and border control, 2009. E.U. Network of
Independent Experts on Fundamental Rights: Ethnic profiling, December, 2006.
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these distinctions to provide a set of recommendations for both the practice and regulation of
profiling.
The Parliament’s Recommendation on the Problem of Profiling claims that profiling deviates
problematically from more traditional ‘targeted law enforcement activities’ in two main ways.
Firstly, it relies on associations between certain characteristics and involvement in criminal activity
instead of evidence linking specific individuals to specific crimes. Secondly, it relies on associations
between criminal activities and aspects of identity, in particular ethnicity and race, rather than
behaviour.
This deliverable draws on liberal understandings of the injustice of discrimination to provide an
account of the reasoning supporting the main proposals of the Recommendation. It also develops
that reasoning to draw conclusions about the ethics of profiling things and profiling places. EU
regulation of profiling addresses neither the profiling of things nor the profiling of places. However,
there are reasons to believe that both these counter-terrorism techniques are less risky morally than
the profiling of people, and could therefore be considered as potential alternatives. The deliverable
begins, however, by addressing the issue of how to define profiling.
Defining profiling
Issues in the definition of profiling
As the EU Parliament’s Committee on Civil Liberties notes in its Working Document on the Problem
of Profiling, convergence on a single, broad definition of profiling is desirable for reasons of clarity
and consistency2. Yet a variety of competing definitions of profiling are currently in use. This is partly
because profiling practices vary significantly. From the maintenance and search of national
databases to stop-and-search in public places and automated behavioural observation through
CCTV, profiling can take many forms and be used in many different security contexts.
Sometimes definitions that are proposed as a starting point for a legal or ethical analysis of one
application of profiling are so specific to that practice that they are irrelevant to other, equally
common forms of profiling. For example, profiling has been defined in the context of data-mining as
‘a technique whereby a set of characteristics of a particular class of person is inferred from past
experience, and data-holdings are then searched for individuals with a close fit to that set of
characteristics’.3 Such a definition might be a sound starting point for a legal or ethical analysis of
profiling in the context of data protection, but its restriction to searches through data-holdings
makes it irrelevant to, for example, behavioural profiling at airports, or stop-and-search in public
places.
Sometimes definitions of profiling are so unspecific about the purpose to which profiling is put that
they are too broad to be a useful starting point for an ethical analysis, at least for one that aims to
feed into regulation. For example, both the mining of consumer data by supermarkets for stock
planning and the mining of Internet communications for counter-terrorism purposes raise data
protection issues. However, only the latter is regulated by norms governing the bases on which the
2
‘Working Document on problem of profiling, notably on the basis of ethnicity and race, in counterterrorism,
law enforcement, immigration, customs and border control’ Sarah Ludford, 13.09.08.
3
Recommendation on the Problem of Profiling, paragraph C.
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state treats people with suspicion and the extent to which it can invade privacy in order to prevent
or prosecute crime. These are norms of criminal justice. Thus, from an ethical perspective, the use of
data-mining in counter-terrorism has more in common with the stop-and-search of individuals by
police in public places than it does with data mining for stock planning in supermarkets. In cases
such as these, where the relevant normative framework governing a practice is dictated by its
context or the purpose to which it is put, it makes sense to define that practice in terms of that
context or purpose.
While the focus of this deliverable is profiling as a counter-terrorism technique, it is not necessary to
formulate a definition of profiling that applies only to counter-terrorism efforts. The same kinds of
profiling techniques are used both for counter-terrorism and other areas of crime prevention. The
moral principles that are engaged and the moral risks that arise do not differ significantly between
the two contexts. The same is not true of profiling of patients in the field of medicine or of
customers in the field of market research. For these reasons, a general definition of profiling that is
applicable to public security more broadly is preferable to a counter-terrorism-specific definition.
When definitions of profiling are not focused on specific practices, they are often intended to
highlight particular moral or legal risks arising from profiling. For example, many ethical analyses of
ethnic profiling seek to demonstrate its discriminatory effects. Accordingly, they often define ethnic
profiling in ways that assume that these effects will ensue. Examples include defining profiling as the
‘use of stereotypes’ or the ‘inappropriate’ or ‘unjustified use of race’ in law enforcement.4 While
these might be sound starting points for discussions of how to prevent profiling, they are unsuitable
bases for an analysis that aims to identify the conditions under which profiling might be justified or
not. For that, a definition that remains neutral about the justice of profiling is required.
If it is to be a sound basis for an analysis of the ethics of profiling in the context of law enforcement
and counter-terrorism more specifically, a general definition of profiling should do at least two
things. First, it should be relevant to the actual security practices considered typical of profiling,
4
The European Commission against Racism and Intolerance (ECRI)’s definition of profiling as "the use by the
police, with no objective and reasonable justification, of grounds such as race, colour, language, religion,
nationality or national or ethnic origin, in control, surveillance or investigation activities" European
Commission against Racial Intolerance. General policy recommendation No.11(2007) Combating Racism and
Racial Discrimination in Policing, paragraph 1. According to the Open Society Institute, ethnic profiling is either
“the inappropriate use by law enforcement of an individual's ethnic characteristics in identifying criminal
suspects” (Foreword (2005) Ethnic Profiling by Police in Europe, Justice Initiatives p.7) or ‘the use by the police,
security, immigration or customs officials of generalisations based on race, ethnicity, religion or national origin
− rather than individual behaviour or objective evidence − as the basis for suspicion in directing discretionary
law enforcement actions. It can also include situations where law enforcement policies and practices, although
not themselves defined either wholly or in part by reference to ethnicity, race, national origin or religion,
nevertheless do have a disproportionate impact on such groups within the population and where this cannot
otherwise be justified in terms of legitimate law enforcement objectives and outcomes.’ OSI (2009), Defining
Ethnic Profiling, New York: Open Society Institute, 7 October 2009, p 2. The US Department of Justice defines
profiling thus: “Racial profiling” at its core concerns the invidious use of race or ethnicity as a criterion in
conducting stops, searches and other law enforcement investigative procedures.” US Department of Justice
Civil Rights Division Guidance Regarding the Use of Race by Federal Law Enforcement Agencies June 2003, p.1.
See also “[R]acial profiling constitutes the intentional consideration of race in a manner that disparately
impacts certain racial minority groups, contributing to the disproportionate investigation, detention, and
mistreatment of innocent members of those groups” Banks Richard (2001) ‘Race-Based Suspect Selection and
Colorblind Equal Protection Doctrine and Discourse’ UCLA Law Review 48 p.1077. This definition is rejected on
grounds of definitional bias by Risse and Zeckhauser (2004) p.136.
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including those used in counter-terrorism. Recent moral and legal controversy over profiling has
arisen in response to a specific set of novel practices (and sometimes novel applications of
established practices). Our definition of profiling should be formulated with these practices in mind,
and any conclusions drawn about the justice of profiling should be relevant to these practices.
Second, it should identify the distinctive features of profiling, especially those that differentiate it
morally from traditional or less controversial investigative or security measures. This helps to focus
attention on the aspects of profiling that give rise to the moral risks associated with it.
Examples of profiling in counter-terrorism
The table below provides actual examples and describes the main features of the practices most
often referred to in legal and ethical debates over the acceptability of profiling. The discussion of
profiling and the proposed definition that follows refers back to these practices to support and
illustrate its arguments.
1. Stop-and-search and identity checks in public places, security checks in airports
 Actual cases: Metropolitan Police, Spanish Police5,
 Carried out by: Police/ border guards/ security staff at airports
 Use: Predictive (i.e. to predict who is currently involved in criminal acts or is planning
to become so); descriptive or reactive (i.e. after a crime has been committed)
 Evidence base for profile: Personal judgement of officers either reliant on past
experience or responding to a hunch; guidance from senior officers; intelligence.
 Traits profiled: Behaviour, such as body language indicating nervousness or hidden
objects; ethnic appearance, including skin colour, racial appearance, religious dress.
 Consequences for targets of profile: subject to questioning; identity checks; physical
and/or car or bag searches; detention.
2. CCTV surveillance, especially at airports
 Actual cases: SPOT, Screening Passengers by Observation Techniques (US Airports)
BEMOSA, Behavior Modeling for Security in Airports (EU-funded project).
Unidentified pilot underway at Heathrow airport, UK.6
 Carried out by: Security staff; border guards; automated viewers
 Use: Speculative; Preventive
 Evidence base for profile: Statistical research; personal expertise of officers;
psychological research
 Traits profiled: behaviour, such as body language indicating nervousness or hidden
objects; ethnic appearance, such as skin colour, religious dress
 Consequences for targets of profile: being subject to surveillance; physical or
luggage searches; extra questioning by border guards or security staff; prevention
from travelling.
5
See Gillian vs UK 2010 for an example of the use of stop-and-search by UK Metropolitan Police, also annual
Reports on the Operation of the Terrorism Act 2000 by Lord Carlile of Berirrew at
www.homeoffice.gov.uk/publications/ /counter-terrorism/independent-reviews/ind-rev-terrorism-annual-rep.
See Rosalind Williams Lecraft v. Spain for an example of the use of profiling by Spanish police at train stations.
6
According to the Uk Parliament’s Home Affairs Committee report on Counter-Terrorism Measures in British
Airports 24 March 2010, the Home Secretary confirmed to the House and Paul Clark suggested to us, is greater
use of "behavioural analysis techniques" or profiling. A trial of such techniques "is currently under way at
Heathrow Airport".
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3. Data-mining
 Actual cases: Rasterfahndung in Germany7; FBI interview programme in USA8;
 Carried out by: police; border agency staff; private companies paid to use their
technological solutions to mine databases; those with access to the specific
databases such as universities, government departments, immigration authorities,
financial institutions.
 Evidence base for profiling: Statistical research; traits of those involved in recent
attacks; intelligence
 Traits profiled: behaviour including travel movements, method of payments,
criminal history; ethnicity including nationality, and religion; immigration status; age;
sex; educational background.
 Consequences for those targeted: subject to surveillance; interview by police; house
search by police; prevention of travel
By summarising these descriptions we can conclude that the kinds of profiling in law-enforcement
and public security that raise controversy are: typically carried out by a variety of actors, including
police, border agents, private firms, and security guards; often for the purpose of predicting who is a
security threat; on the basis of evidence that ranges from intelligence to statistical research to the
hunches of individual police officers; using behavioural and non-behavioural, including ethnic, traits;
with consequences for individuals that range from surveillance to detention.
Four distinctions between profiling in counter-terrorism and traditional or targeted
policing
How does profiling thus described differ from traditional, or non-controversial law-enforcement and
security practices? Four key distinctions can be drawn.
1. Profiling is used by non-law-enforcement agencies in ways that do not involve law
enforcement investigations. For example, it is used by airport security staff and by border
authorities to decide who should receive further security scrutiny.9 If that scrutiny exposes
nothing suspicious, no law enforcement officers may be engaged and no further action may
be taken. In other words, in some cases profiling might be a precursor to law-enforcement
action, in many others it might not. Thus profiling is not merely a law-enforcement practice
but also a means of reducing security threats and ensuring public security more broadly.
2. Secondly, in recent years profiling has increasingly been used in predictive ways. Predictive
profiling aims to identify people who present a threat to security because of their
7
See D03.1,2.3 on www.detecter.eu for analysis and an overview of the programme.
The FBI invited for voluntary interview, “males born between January 1955 and December 1984; entered the
United States between January 1 and February 27, 2002; and claimed citizenship from any of 26 countries in
which intelligence indicated that there was an al Qaeda terrorist presence or activity. General Accounting
Office (April 2003) Homeland Security Justice Department's Project to Interview Aliens after September 11,
2001 GAO-03-459, A Report to Congressional Requesters. p. 8
9
The increase in the use of data-mining as a basis for profiling and of behavioural profiling in airports may
have implications for the professional ethics of border guards and other security staff. Police ethics is a welldeveloped area of professional ethics, but border guard ethics, for example, is not. Border guards in Europe
may be required to implement profiles that change daily or even more frequently on the basis of riskassessments.
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involvement in or plans to commit as-yet-undiscovered crimes.10 It is often discussed in
contrast to descriptive profiling, which aims to identify specific suspects involved in known
ongoing or past crimes. Predictive profiling differs from ‘descriptive’ profiling because its
primary purpose is the disruption of threats and prevention of serious crime; the fact that it
might sometimes lead to the prosecution of less serious crime is a secondary benefit. By
leading to the exposure and incarceration of known criminals, descriptive profiling also has
preventive effects; but it is justified primarily as a way of holding people to account for their
crimes. Other things being equal, prevention is sufficient to justify predictive profiling, and
prosecution is sufficient to justify descriptive profiling. In practice of course, and as is
explained in more detail later, only prevention of certain security threats can justify certain
forms of predictive profiling, and prosecution of just any offence cannot justify every form of
descriptive profiling.
3. The kind of evidence typically used in predictive profiling is more general than that used in
traditional forms of investigation. In its Recommendation on the Problem of Profiling the
Parliament draws a distinction between profiling and what it calls ‘targeted investigations’.
Targeted investigations rely on what some legal theorists call ‘individual’ or ‘individualised’
grounds for suspicion.11 These include witness reports, CCTV footage, and other kinds of
evidence about the traits of a particular suspect connected to a particular criminal
incident.12 Profiling is distinct from such investigative techniques insofar as it identifies
certain types of people as suspicious. This means it relies mainly or strongly on associations,
generalisations, statistical correlations or stereotypes about the link between certain traits
and involvement in certain kinds of crime.13
10
This definition is put forward in the Parliament’s Recommendation on Profiling but has also been used
widely in recent years, see Report of the UN Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism, Martin Scheinin, A/HRC/4/26, 29 January 2007,
at paragraph 33. See also E.U. Network of Independent Experts on Fundamental Rights, Ethnic profiling, CFRCDF.Opinion4-2006, p. 9-13. The Fundamental Rights Agency of the European Union also uses this definition.
11
Davies: 2007
12
The UK’s Police and Criminal Evidence Act draws a distinction between the two kinds of practices when it
asserts that the reasonable suspicion required to justify a stop and search or detention “must rely on
intelligence or information about, or some specific behaviour by, the person concerned” and “cannot be based
on generalisations or stereotypical images of certain groups or categories of people as more likely to be
involved in criminal activity”. (para 2.2) It is worth noting that this does not rule out profiling as a basis for law
enforcement decisions that are less invasive of privacy or restrictive of liberty than a stop and search or
detention.
13
Sometimes, however, police actions may be based on a combination of associations and individual suspicion.
For example, information about a particular crime may be available, but the police may speculate about the
kinds of people likely to have committed it. When, for example, a crime occurs that is typically committed by
someone known to the victim, then members of the victim’s close circle may be targeted for questioning, even
if no prior evidence exists linking any specific individual to the scene of the crime. This is descriptive profiling
that relies on statistical associations as a way of targeting suspicion more efficiently.
Predictive profiling can likewise make use of specific information alongside associations. For example,
intelligence might suggest that central London is a likely location for a future Irish Republican terrorist attack.
From past experience police may predict that such an attack is more likely to be carried out through car
bombing than other measures and thus respond by stopping and searching drivers in what are considered key
locations vulnerable to attack. As this illustrates, both predictive and post-facto or descriptive police
investigations can rely on a combination of generalisations and specific information.
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4. The fourth feature of profiling that distinguishes it from targeted investigative practices is its
tendency to rely on associations or generalisations -statistical or otherwise- about legally
protected traits such as race or racial appearance, ethnic background and sex. While such
traits are routinely used to help identify suspects in targeted investigations, appeal to them
is usually supported by individually identifying evidence such as that taken from witnesses or
victims, identifying documents, or CCTV.
As is discussed in more detail below, these features of profiling distinguish it from targeted policing
not only practically but also morally.
A proposed definition of profiling
Having identified the distinctive features of profiling, we can address directly the question of how
best to define it. In its Recommendation on the Problem of Profiling, the European Parliament
proposes we define it thus:
Profiling is “the systematic association of sets of physical, behavioural or psychological
characteristics with particular offences and their use as a basis for making lawenforcement decisions.”14
This definition captures the features of profiling described above in at least three important ways.
Firstly, it remains silent on the professional identity of the agent, and it excludes most targeted
investigative techniques by identifying the use of ‘associations’ between certain traits and certain
criminal activities as one of the defining features of profiling. Secondly, it leaves open the question
of the kind of evidence used to support the association, and the purpose (predictive or descriptive)
to which the profile is put. Thirdly, it distinguishes between systematic and ad-hoc instances of
profiling, thereby focusing attention on practices rather than one-off or coincidental actions.15
However, there are three ways in which the definition might be too narrow to accurately reflect the
practices listed above. First, it restricts its application to the use of profiles as a basis for lawenforcement decisions thus excluding immigration or airport security decisions. It is true that the
legal powers and duties of security officers may differ from those of law-enforcement officials. But
preventing a person from entering a country, or detaining someone at an airport for questioning and
searches raise the same moral risks (of discrimination and interference with privacy) as stopping and
searching someone in the street, or subjecting them to police-instigated surveillance. From an
ethical perspective, therefore, both kinds of practices should therefore be included in a definition of
profiling. This could be done by expanding the category to include both law-enforcement and public
security decisions.
A second way in which the definition of profiling cited above might be unnecessarily narrow is by
requiring that certain traits be associated with particular offences. In many cases of profiling, and in
counter-terrorism profiling in particular, traits are often associated with specific kinds of crime. But
sometimes categories of people might be subject to extra scrutiny because of a belief that people
like them are generally up to no good. This kind of profiling is clearly unjustified, and usually reflects
This definition is taken from a Report of the Special Rapporteur to the UN on the promotion and protection of
human rights and fundamental freedoms while countering terrorism para 33.
15
Thanks to Martin Scheinin for this clarification.
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ethnic or racial prejudices. But it still counts as profiling. Altering the definition so that profiling
involves the systematic association of sets of characteristics with criminality would reflect this.
It could be argued that we should not stop at criminality but rather should further broaden of the
definition of profiling to capture measures which may be used to identify “unwanted behaviour”.
This would include conduct that has not been criminalized but is nevertheless classed as ‘suspect’.16
There are at least two reasons not to broaden out the definition in this way in this paper. First, all
known cases of profiling in the EU in recent years do aim ultimately to prevent or prosecute
behaviour that is criminal and not merely undesirable. Second, this paper is concerned with the
justice of profiling in a liberal democracy for the purposes of reducing behaviours legitimately
defined as criminal. In such a state, law enforcement actions are only legitimate if they are based on
suspicion of criminal behaviour. Defining profiling in terms of criminal suspicion assumes that it
meets this minimal legal and moral requirement and is therefore permissible in principle. This allows
us to avoid having to explain, for example, why the profiling of people for purposes of deterring
dissent or inflicting re-education on those with dissenting views is unjustifiable.
Thirdly, the definition might narrow the category unnecessarily through its identification of the traits
used as ‘physical, behavioural, or psychological characteristics’. While some characteristics used in
profiling, such as racial or ethnic appearance or religion, fall within these categories, it is not obvious
whether the same can be said for nationality, a trait which is often used as a basis for profiling.
Nationality is ascribed by a political authority, usually on the basis of location of birth or nationality
of parents. Like race, caste, and (social) class, nationality can be guessed by observing a person’s
behaviour and physical appearance, but is socially constructed in a way that means it fits
comfortably in neither of those categories. However, like race, it is an essential component of the
cluster of characteristics that make up a person’s ethnic identity. Adding a fourth category of ‘ethnic’
traits to the list may thus be one way of expanding the definition to include traits such as nationality.
This would also have the benefit of removing the need for a further definition of ‘ethnic profiling’.17
The EU Parliament’s Recommendation on the Problem of Profiling cites two definitions of ethnic
profiling. The first of these adds nothing to the definition proposed by the Parliament, apart from its
specification of the elements included in the category of ethnic traits:
Ethnic profiling is ‘the practice of using “race” or ethnic origin, religion, or national origin, as either
the sole factor, or one of several factors in law enforcement decisions, on a systematic basic, whether
or not concerned individuals are identified by automatic means’ ( 3 )
The second refers to a practice that is by definition unjust and is already clearly prohibited in EU law:
‘the use by the police, with no objective and reasonable justification, of grounds such as race, colour,
language, religion, nationality or national or ethnic origin, in control, surveillance or investigation
activities’ ( 4 );
Both also limit their relevance to actions carried out by law-enforcement officials, which, as has
already been discussed, seems unnecessarily narrow. For these reasons, it seems preferable to focus
16
Thanks to Martin Scheinin for pointing this out to me.
Alternatively, and perhaps more simply, the definition could simply omit to specify which categories of
characteristics are used as the basis for profiling. But it could be argued that, in doing so, it would miss the
opportunity to describe the practice of profiling as it has actually been used in recent years.
17
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on one general definition of profiling that includes ethnic profiling. This does not prevent us from
making distinctions between the moral risks arising from ethnic and other applications or bases for
profiling.
Adapting the definition proposed by the Recommendation as has been suggested in this section
would produce the following general definition of profiling:
Profiling is the systematic association of sets of physical, behavioural, psychological or ethnic
characteristics with criminality and their use as a basis for making public security or lawenforcement decisions.
This definition fulfils the conditions of relevance to practice and context and neutrality that were set
out above. It provides a suitable starting point for an examination of the moral risks of profiling that
now follows.
The ‘problems’ with profiling: the evidence-base for profiling
As noted in the introduction to this deliverable, the European Parliament’s 2009 Recommendation
on the Problem of Profiling distinguishes between justified and unjustified and riskier and less risky
kinds of profiling. On the basis of these distinctions, it makes recommendations for the practice of
profiling, some of which are paraphrased below:
1. Profiling is permitted for both ‘descriptive’ and ‘predictive’ purposes, but should be subject
to stricter scrutiny when used for the latter.
2. Profiling for precautionary purposes is prohibited.
3. The profiling of terrorists on the basis of ethnicity only (pure ethnic profiling) is prohibited.
4. The profiling of terrorists on the basis of a combination of ethnic traits and behavioural traits
(combination profiling) is permitted, but only when it is evidence-based.
5. The profiling of behavioural traits is permitted, but its use should be guided by proper
concerns for the right to privacy and data-protection rights.
The following sections take each of these recommendations in turn and attempt to provide an
account of the reasoning behind them that renders them consistent with each other and with liberal
principles of non-discrimination and equality.
Recommendations 1&2: Predictive versus descriptive and precautionary profiling
The Recommendation defines descriptive and predictive profiling thus:
i) [Profiles are] descriptive, when they are based on witness and other information about
perpetrators or characteristics of crimes that have been committed, and thus support the
apprehension of specific suspects or the detection of current criminal activities that follow the same
pattern.
ii) [Profiles are] predictive, when they make correlations between observable variables from past
events and current data and intelligence in order to draw inferences believed to identify those who
may be involved in some future, or as-yet-undiscovered crime
12
These definitions suggest that there are at least two distinctions between descriptive and predictive
profiling. The first relates to the kind of evidence used as a basis for the profile: descriptive uses
witness and other information about perpetrators or crimes, while predictive uses observable
variables from past events and current data and intelligence. The second is the purpose to which the
profile is put: descriptive profiles aim to apprehend specific suspects and detect current criminal
activities, while predictive profiles aim to identify those involved in future or as-yet-undiscovered
crimes.
In practice, the distinctions between predictive and descriptive profiling may be hard to discern. For
example, descriptive profiling (understood as profiling after a crime has been committed) could and
indeed has relied on generalisations about past events and current data to make inferences about
the kinds of people likely to be the perpetrator. The profiling of Irish Catholics by the UK army
following IRA terrorist attacks is one example of this; the profiling of white lone males in the
Washington Sniper investigation is another. Likewise, predictive profiling (understood as profiling in
advance of a terrorist attack) could make use of quite specific intelligence to prevent attacks. It is not
only conceptually possible, it is also probable in practice that some counter-terror profiles use a
combination of specific information and generalisations.
The aims of preventing and prosecuting crime can also be combined in one investigation: detecting
people engaged in an attempted terrorist attack or a conspiracy to commit one will result not only in
their prosecution but also in the prevention of the planned attack. A profile that uses a mixture of
generalisations based on knowledge of past crimes, plus specific intelligence or evidence, to detect
those engaged in a terrorist conspiracy may therefore fall partly within both or neatly within neither
category. For all of these reasons, in practice, the recommendation that predictive profiling be
subject to stricter necessity and proportionality tests than descriptive profiling may be difficult for
police to apply. There may therefore be practical reasons for setting aside this distinction.
There are also moral reasons for placing only modest emphasis on the distinction between
predictive and descriptive profiling. The fact that a profile is used in advance of a serious attack or to
identify suspected crimes does not by itself provide a reason for applying it with any more caution
than if it were used to support prosecutions of known crimes already committed. Both are equally
legitimate aims of law enforcement and public security more generally. In contrast, the fact that a
profile is based on evidence that takes the form of generalisations and associations does give us a
reason to apply it with caution. How much caution depends on how general and how reliable this
evidence is. The problem with the most notorious actual measures of profiling such as the
Rasterfahndung (discussed in more detail in D3.1) was not that it was used predictively. It would
have been equally unjustifiable had it been used after the commission of a terrorist attack in order
to identify the perpetrators. The reason the Rasterfahndung was unjustified was that there was
simply no meaningful statistical evidence or intelligence suggesting that people who matched the
profile were likely to be involved in terrorist acts. Subjecting people to interferences with privacy or
other forms of criminal suspicion without any objective reason for doing so amounts to arbitrary
treatment, and it conflicts with the liberal principle of equality.
In contemporary liberal theory, the principle of equality is, along with the principle of liberty, a
fundamental principle of justice. It requires that the state should treat people the same unless there
13
are relevant reasons to treat them differently.18 If people are treated differently without relevant
reasons to do so, then they can be said to be subject to arbitrary treatment. When some people are
treated worse than others, in particular, when their rights are interfered with or limited by the state,
and that treatment is not supported by sufficiently relevant reasons, we can say they are
discriminated against.
In the sphere of criminal justice, what counts as a relevant reason for punishing someone can only
be the fact that they are responsible for a crime: the ground for the imposition of punishment is
criminal responsibility. To the extent that information exists suggesting that two people are equally
responsible for a crime, they should be subject to equal punishment. To punish someone more than
another when they are both equally responsible is, other things being equal, to discriminate against
the person who suffers the worse punishment. The same reasoning applies to the imposition of
other criminal justice measures, such as criminal suspicion.
Profiling in counter-terrorism takes place in the context of criminal investigation, rather than
criminal trial. In other words, profiling is used to identify people who merit suspicion rather than
those who merit punishment. The reason for subjecting someone to suspicion (i.e. the information
provided in a profile) is more relevant, the more specific it is to both the incident committed/about
to be committed and the kind of person supposed to have committed/about to commit it. The more
relevant the information is, the more likely it is to justify police action.
To illustrate with an example used in D5.1, we may consider whether the fact that a person travels
periodically to Pakistan from a UK airport is a relevant reason to subject them to extra screening,
such as bag searches and questioning. Travelling to Pakistan is of some relevance to efforts to
counter-terrorism because it is known that terrorist training camps operate in some areas of
Pakistan. But in order to judge whether it is of sufficient relevance to count as a relevant reason, we
need to consider, in rough terms, by how much travelling to Pakistan increases the probability that
someone is involved in terrorism. Let us assume that intelligence suggests that there are 1,500
terrorists operating within the UK, and it is estimated that anywhere up to 1/3 of these travel to
Pakistan each year. 5-6 flights leave the UK for Pakistan daily, carrying approximately 250 passengers
each, which means that checking everyone who flies to Pakistan from the UK involves 5,475,00
checks a year. For each check, there is something like a 1 in 1000 chance that the person surveilled is
a terrorist. This drops further when we consider that some of those terrorists travelling to Pakistan
may do so overground, through flights to countries such as India or Iran, which are not associated
with terrorist threats to the EU.
The fact ‘travels from the UK to Pakistan’ is of too little relevance to involvement in terrorism, and
thus too little value as evidence of such involvement, to justify any kind of scrutiny. Much more
specific information would need to be added to the profile to render it a defensible basis for action.
For example, say that reliable intelligence suggests that an elderly, male terrorist ringleader is
leaving the UK today for Pakistan. Immediately the probabilities of catching the terrorist by
investigating all those who fit the profile leap upwards to something like 1 in 300. While this might
not justify arresting all 300 individuals who match the profile, it would justify subjecting them to
detailed questioning and extensive background checks. Such measures would not be arbitrary and
18
Bernard Williams, (1962) 'The Idea of Equality' in Philosophy, Politics and Society 2nd series ed. P.
Laslett and W.G. Runciman. (Oxford: Blackwell).
14
so, even though they involve invasions of privacy, they would not conflict with the liberal prohibition
on discrimination.
One of the conclusions we might draw from this about the ethics of profiling in counter-terrorism is
that both predictive and descriptive profiling are justifiable if they are based on evidence that
amounts to a relevant reason for imposing whatever measure of suspicion follows. The more general
or less specific the information on which profiling is based, the less relevant it is to the crime
prevented. The less relevant the evidence supporting a profile is, the smaller the intrusion it can be
used to justify, other things being equal. Thus in both descriptive and predictive profiling, the extent
of the invasion of privacy should be proportionate to both the relevance of the evidence and the
gravity of the harm prevented.19
This analysis supports the Recommendation’s distinction between the use by police of associations,
data, and generalisations on the one hand and witness statements and other specific evidence and
intelligence on the other. But protection against arbitrary and discriminatory profiling would be
better secured by advising caution in the use of profiles that are based entirely or in large part on
generalisations and associations as evidence of involvement in counter-terrorism, rather than
advising caution in the use of profiles that are used predictively.
Speculative profiling
Profiles that rely purely on generalisations or associations without any specific evidence or
intelligence linking the people profiled to an ongoing or imminent terrorist crime are difficult to
justify as bases for intrusive police activity. This position is reflected in the rules governing the use of
evidence by police. For example, in the UK, the guidance to police officers about reasonable
suspicion -the standard of evidence that must be reached to justify a stop-and-search by policeexcludes actions based purely on generalisations about the types of people associated with types of
crime. According to the UK’s regulation of the use of evidence for police, pure association, whether
it is statistically supported or mere speculation, does not normally meet the standard of reasonable
suspicion.20
Security officers in airports (and, in some jurisdictions, border guards) are not subject to the same
legal or professional regulation as police officers. Their powers to invade privacy are similar to some
of those of police officers but are generally far less extensive and only exercisable in circumscribed
environments. Unlike other transport facilities such as train stations, airports are quasi-private
spaces that most people do not travel through as part of their daily routine. The requirement of
reasonable suspicion does not apply to private security officers working in these environments.
Rather, the guiding principle is that of proportionality. The use of both general screening and
speculative profiling is far more widespread in these restricted environments. For example,
behavioural profiling is undertaken without any evidence of a specific criminal plot or crime or
indeed any intelligence that plots and crimes are likely to be committed.
19
Descriptive profiling may of course fail to balance these three considerations. An example is provided by the
Oneonta case in the USA. In 1992, an elderly lady was attacked by a man she described as black, with a small
wound on his hand. Police used this information as a ground for searching every black male on a nearby
university campus and in the surrounding area over a five-day period. Brown vs City of Oneonta
20
The 1984 PACE guidance states that while “reasonable grounds for suspicion depend on the circumstances
of each case...Reasonable suspicion cannot be based on generalisations or stereotypical images of certain
groups or categories of people as more likely to be involved in criminal activity” Police and Criminal Evidence
Act 1984, Code A 2.2.
15
There are reasons to hold that speculative profiling is less problematic in airports than it would be if
it were used in other kinds of public places by police. At airports everyone is subject to some
interference with privacy, and it is generally accepted that such interferences need not be based on
evidence at all. For example, random searches and screening of everyone is common practice at
airports. In random screening and the screening of everyone it is generally expected by those
searched and those doing the searching that the vast majority of people searched will turn out to be
no threat to security at all. Thus it would be wrong to claim that such searches treat everyone like a
suspect, just because they subject everyone to some invasion of privacy. Rather, these kinds of
searches are linked to and justified in virtue of certain features of airports that make them
vulnerable to attack and not to the specific features of people passing through airports. People
working in nuclear power stations, or in biological laboratories with infectious diseases expect to be
subject to strict security clearance procedures, as indeed do individuals who work with children.
Such procedures are there not because nuclear engineers and biologists who specialise in disease
are thought to have greater criminal tendencies than people who work in supermarkets. They are
there in virtue of the specific features of the materials with which they work. These features mean
that those materials pose a very high risk of harm to society if mishandled or misused. In the case of
children, it is their extreme vulnerability to harm that makes background checks on those who work
with them proportionate.
For similar reasons, speculative profiling may be justified in airports or other vulnerable public
facilities such as electricity stations, nuclear power plants, or chemical laboratories, if it is more
efficient than an increase in random screening or the screening of all people in those locations. The
overriding reason why people in airports are subject to speculative profiling is the fact of their
presence in an airport. Many of the features of people that trigger scrutiny within an airport- kinds
of behaviour or body language linked to attempts to hide objects, for example, or the way in which
people answer key questions- would not raise suspicion in other contexts, such as city streets. In the
absence of a riot or similar state of emergency, city streets do not qualify as high-risk or vulnerable
locations which can be the legitimate site of speculative profiling for privacy-invading measures. One
of the reasons the Metropolitan Police’s policy of stop-and-search in London streets has been
opposed so strenuously in the UK is precisely its use of public-security techniques, such as random
screening and speculative profiling, to subject people going about their daily routine to measures
normally triggered only by the presence of reasonable suspicion of criminal activity. In that case, the
presence of a relevant reason for the imposition of such measures was doubtful.
Precautionary profiling
Speculative profiling is similar to but should be distinguished from precautionary profiling.
Precautionary profiling is used to identify people who are potential criminals, rather than those who
are thought currently to be engaged in criminal activity. Precautionary profiling could involve the
retention of data about potentially suspect types because it might prove useful at some point in the
future. The UK’s use of the DNA database of all individuals arrested by police is one example of this
kind of criminal profiling. Precautionary profiling might also involve the surveillance of people who
are thought to be vulnerable to criminal recruitment. For example, UK intelligence has suggested
that convicted terrorists serving sentences are using their time in prison to target young, AfroCaribbean prisoners as recruits to their cause.21 The precautionary profiling of Afro-Caribbean
21
http://www.guardian.co.uk/uk/2006/oct/02/prisonsandprobation.terrorism
16
prisoners could involve subjecting any interactions with convicted terrorists or prison Imams to
covert surveillance.
The existence of intelligence about individuals vulnerable to radicalisation in prisons would justify
counter-radicalisation measures within the prison, such as open debate about the wrongs of
terrorism. But it would not justify interferences with privacy or restrictions of liberty. Precautionary
profiles are not based on information relating to involvement in criminal activity. The harm they aim
to prevent is too uncertain and too uncertainly linked to the people targeted to be a justifiable basis
for any privacy-invading measure. Subjecting people selected by such profiles to precautionary
measures of interference treats them as criminal suspects, when they are not suspected of any
crime. This makes such profiles discriminatory. It is consistent with the Recommendation’s proposed
distinction between the use of general and specific information as evidence bases for measures of
criminal suspicion to outlaw the use of information that is not only highly general but does not even
indicate involvement in actual crime. This supports the Recommendation’s claim that precautionary
profiling should be prohibited.
Recommendations 3-5: The profiling of identity versus the profiling of
conduct
The previous section examined how the very general nature of the evidence used in some counterterrorism profiles can result in measures that discriminate against those targeted. This section
examines the risks of discrimination that arise from the use of ethnic and other identity traits, rather
than behaviour, as indicators of criminal suspicion. It also considers how the use of ethnic traits as
an indicator of suspicion might result in measures that conflict with equality in other less direct
ways. In particular, it examines how profiling ethnicity might help maintain hostility towards certain
ethnic groups.
In its Recommendation, the Parliament claims that the profiling of behaviour is always more
acceptable than the profiling of ethnicity, and that the profiling of ethnicity alone is prohibited:
1. The profiling of terrorists on the basis of ethnicity only (pure ethnic profiling) is prohibited.
2. The profiling of terrorists on the basis of a combination of ethnic traits and behavioural traits
(combination profiling) is permitted, but only when it is evidence-based.
3. The profiling of behavioural traits is permitted, but its use should be guided by proper
concerns for the right to privacy and data-protection rights.
Then Parliament puts forward three different reasons in support of these recommendations. The
first is that profiling ethnicity departs from the general rule that law enforcement decisions ‘should
be based on an individual’s personal conduct’ and not on their identity.22 The second is that profiles
based on ethnicity may be based on stereotypes or prejudicial assumptions about the criminal
tendencies of certain groups, rather than evidence. The third is that profiles based in ethnic
prejudice may exacerbate xenophobia and hostility towards certain groups. The first two of these
22
The part of this sentence referring to identity was not included in the Recommendation itself but is included
in the Working ... It is a fundamental principle of the rule of law that law enforcement actions should be based
on an individual's personal conduct, not on their identity.
17
are reasons for objecting to the profiling of ethnicity irrespective of its consequences. In other
words, they are reasons for objecting to the profiling of ethnicity in principle. The third of these
points to ways in which profiling might be problematic in virtue of its harmful consequences.
Profiling ethnicity and discrimination
The first reason given by the Recommendation against ethnic profiling relates to the notion of a
relevant reason developed above. The claim that law enforcement should rely on information about
an individual’s personal conduct, rather than their identity, suggests that the features of someone
that make up their identity should not normally be considered relevant reasons for treating them
with suspicion. It is a basic principle of morality that people should be held responsible for the things
they do and not for things about them over which they have no control. Indeed the very possibility
of holding people responsible presupposes their freedom to act otherwise. Morality permits us to
hold each other responsible for our actions because it presumes that we are the authors of those
actions and are free to have acted otherwise. Identity traits, including ethnic traits, are aspects of
ourselves that we do not control and for which we are not therefore responsible. They are aspects of
ourselves that have no intrinsic connection to our intentions to behave in one way or another nor, it
follows, to our propensity to criminality of any kind.
These claims have both practical and moral implications. In practical terms, they imply that we
cannot tell whether someone is a criminal or is about to commit a crime by examining their ethnic
background. In this ethnic traits are no different from traits such as height, nose size, sex, or sexual
orientation. None of these things are decisive indicators of criminality.
Does this mean that ethnic traits can never be included in a profile? No. Ethnic and other identity
traits can be used legitimately in criminal profiles. But they can only be considered relevant reasons
for excluding people from suspicion of a crime; they cannot provide an independent reason for
conferring suspicion. We can illustrate this point with an example of descriptive profiling of ethnicity.
When a victim of a crime reliably23 identifies an assailant as exhibiting certain ethnic and other traits,
it is legitimate for police to exclude from their investigations individuals who do not exhibit the trait
identified. In such a case, ethnicity is a relevant reason for excluding a person from suspicion,
because it is highly unlikely, indeed almost impossible, that a person of a background other than that
identified by the victim could have committed the crime. In contrast, the fact that an individual
shares the ethnic traits of the assailant is not by itself a relevant reason for subjecting them to
suspicion.24 At least in European multicultural societies, there are simply too many people of all
ethnic traits for ethnicity alone to be a strong enough indicator of guilt to be a basis for police action.
The police need more identifying information before they can decide which of the very many people
exhibiting the identified traits are actually suspicious. The relevant reason can only be the existence
of other specific information about a person’s actions, if the profile is to avoid discriminating against
those it targets, and thus be permissible.
23
Empirical research has shown that witness identifications of race are not always reliable. Prejudice or
stereotypes can influence the way people perceive the racial or ethnic identity of criminals. For this reason the
reliability of each witness should be considered in each case in which a racial or ethnic description exists. It is
also true that racial and ethnic categories are interpreted subjectively: a person whom to some looks white
may look mixed-race or Arab, or Asian to others. This is a reason for allocating less probative weight to the
racial and ethnic characteristics in a profile, especially when these have been interpreted from a person’s
visual appearance.
24
Sharon Davies provides a convincing case for the use of ethnicity to exclude people from what she calls the
‘circle of suspicion’ in her (2003) ‘Profiling Terror’ Ohio State Journal of Criminal Law Vol.p.67.
18
The same can be argued for profiling on the basis of statistical evidence linking people of certain
ethnic backgrounds to terrorist crime. As long as the statistical evidence is sound and demonstrable,
as long as the role of the ethnic traits in the profile is, in combination with other traits, to make an
initial cut between those who can be excluded from suspicion and those who cannot, and as long as
that initial cut itself has no consequences for those not excluded from suspicion, but is followed up
by more specific identifying evidence, then the use of ethnicity in profiling is, in principle,
permissible. Profiling is likely to work best when it involves a number of stages of investigation, at
each of which the number of individuals investigated becomes smaller, the information about them
more specific, and the intrusion greater.
The reasoning put forward here supports the distinction made by the Recommendation between the
profiling of ethnic traits and the profiling of behaviour. It also supports both the recommendation
that pure ethnic profiling should be prohibited and that profiles combining ethnic and behavioural
traits are permitted. But the Recommendation only permits the use of combination profiles with
strict necessity and proportionality tests, a proviso it does not impose for the use of behavioural
traits. The reasons for demanding this are given by the Recommendation when it warns of the risks
of prejudicial profiling and profiling that exacerbates xenophobia or hostility to some groups. These
reasons are now examined.
Profiling ethnicity and the risk of prejudice
As argued in D5.1, one way in which prejudice in ethnic profiling can be avoided is by insisting that
the inclusion of ethnic traits in a profile is supported by demonstrable evidence that people of some
ethnic description are engaged in some criminal activity. But it has been argued that a requirement
of evidence may not be sufficient to prevent the prejudicial application of a profile.
One argument supporting this position points to the historical and perhaps natural human tendency
to overestimate the relevance of a person’s ethnic background to many other facts about them,
including their potential criminality. It claims that this can be demonstrated by reference to ethnic
divisions and prejudices of the past. This historical and natural overuse of ethnicity may lead police
and other security officers to attribute far greater weight to the ethnic traits in a profile than the
other traits. This, it is argued, leads them to select more people from one ethnic background for
interference than is proportionate to either the evidence or the aim of the activity. One often-used
example cited in support of this position concerns the case of the US customs service, which
drastically improved the rate at which it successfully identified drug-smugglers at airports when it
removed racial traits from the profile its officers were using.25 Customs officers had been
overestimating the probative value of race as an indicator of drug smuggling. In other words, they
assumed that a person’s race said more about whether they were involved in drug smuggling than in
actual fact it did. Removing race from the profile encouraged customs officers to pay more attention
to the presence of traits that their excessive focus on race may have distracted them from. Thus the
overuse of ethnicity as a basis for all kinds of discrimination is, it is argued, a reason for imposing its
mandatory underuse.26
Building on this line of argument, it has been claimed that when an ethnic profile reflects existing
preconceptions about the criminal propensities of different ethnic groups, the risk of their being
applied disproportionately increases. In such cases, officers’ unintentional or unwitting prejudices
25
26
Sharon Davies Profiling Terror p.63.
Schauer
19
about the criminal propensities of certain ethnic groups might come to influence their application of
a profile, especially when they are confirmed, even slightly, by that profile.27 This makes it more
difficult to distinguish whether measures of ethnic profiling are based in prejudice or in evidence,
and therefore to provide reliable oversight.28
One lesson that can be drawn from this is that the risk that ethnic profiling is prejudicial increases
the more discretion given to police officers in its application. One practical implication of this might
be that profiles including ethnic traits should always be ‘written’ or ‘formal’, rather than left to the
discretion of individual officers, and that even then officers should be required to demonstrate that
those they scrutinised did indeed match the profile given. Another might be a preference in some
cases for automatic over human profilers. Because of its ability to be programmed with specific,
inflexible algorithms telling it how much weight to apply to each variable in the profile, detection
technology such as data-mining may be a potentially less prejudicial method of profiling ethnicity
than the use of human profilers.
Prejudice can also be a result of profiling. A further reason given in the Recommendation for
adopting ethnic profiling with caution is that it may exacerbate hostility towards certain ethnic
groups. Ethical theorists have argued that these risks increase when prejudice about the relevant
criminality of the ethnic groups profiled is already widespread in society. By confirming pre-existing
prejudices, profiling might encourage those who hold them to maintain or even embrace them more
strongly. Given the damage ethnic prejudice can do to those who are victims of it in terms of
stigmatisation, humiliation, reduced access to opportunities, and so on, not to mention the harm to
social relations between different groups, profiling that confirms prejudices should be applied with
caution, exceptionally, or not at all.29
This argument can be applied in the case of counter-terrorism profiling in the UK, where the relevant
kind of prejudice can be said to exist towards young males of Asian or Muslim appearance. This
group is associated in the public mind with terrorism and is subject to discrimination by other people
in society for this reason. Since the 1980s this kind of prejudice has become associated with the term
Islamophobia, which refers to the view that Islam and its followers are “violent, aggressive,
threatening, supportive of terrorism and engaged in a 'clash of civilisations'”. Islamophobia results in
"an outlook or world-view involving an unfounded dread and dislike of Muslims, which results in
practices of exclusion and discrimination”.30 The prevalence of Islamophobia has intensified in recent
years in the UK as well as other EU countries, especially following the September 11th attacks of 2001
on the USA and subsequent attacks in Madrid and London.31 A 2003 report by the Committee on the
Elimination of Racial Hatred expressed particular concerns about rising instances of Islamophobic
27
Also FRA 1.2.1
Schauer Frederick (1997) ‘Generality and Equality’ in Law and Philosophy (16) p.281
29
Lever Annabelle (2004) “Why Profiling is Hard to Justify: A Response to ‘Racial Profiling’ by Mathias Risse and
Richard Zeckhauser” in Philosophy and Public Affairs, Vol.3 (2), Spring. Bou-Habib, Paul, Racial Profiling and
Background Injustice, The Journal of Ethics (June 2011), 15 (1-2).
30
Runnymede Trust (1997) Islamophobia: A Challenge for us All. The Runnymede Trust propose an extended
definition of Islamophobia.
31
Allen, C., and Nielsen, J.S. (2002) Summary Report on Islamophobia in the EU after 11 September 2001,
European Monitoring Centre on Racism and Xenophobia (“EUMC”), Vienna, May 2002
<http://eumc.europa.eu/eumc/material/pub/anti-islam/Synthesis-report_en.pdf>; European Monitoring
Centre on Racism and Xenophobia The fight against Anti-Semitism and Islamophobia - Bringing Communities
together, Vienna/Brussels, Fall 2003, at <http://eumc.europa.eu/eumc/material/pub/RT3/Report-RT3-en.pdf>
28
20
violence and crime within the UK, as well as an antagonistic and provocative attitude by some
newspapers to Muslims.32 Media coverage of Muslims in the UK is, reported a study carried out by
the Greater London Authority “likely to provoke and increase feelings of insecurity, suspicion and
anxiety amongst non-Muslims [and] at the same time likely to provoke feelings of insecurity,
vulnerability and alienation amongst Muslims, and in this way may weaken the Government’s
measures to reduce and prevent extremism.”33
The Parliament’s Recommendation suggests that profiling of ethnicity only risks exacerbating
prejudice and hostility against certain groups when it is itself prejudicial, rather than evidencebased. But increasingly ethical theorists agree that a risk of exacerbated hostility and prejudice arises
from the profiling of ethnic traits even when the profiles are based in evidence and applied
proportionately. This seems plausible, at least when profiling is carried out visibly, in airport security
and stop-and-search, and when its use is reported in the media. It seems reasonable to assume that
when people see individuals whom they already associate with terrorism being singled out for
intrusion of some sort, they are likely to believe that their associations are correct.
Let us assume that profiling young, male Muslims in the UK does contribute to the maintenance of
Islamophobic stereotypes and prejudices even when it is combined with other specific information.
Does this negative consequence of profiling outweigh the benefits to security of including the ethnic
traits within the profile? It seems the answer should be ‘not necessarily’. The main reason for this is
that it is unlikely that any counter-terrorism alternative to profiling will contribute to Islamophobia
much less. Any police action that publicly subjects young, male, Muslims in the UK to suspicion of
terrorism will confirm pernicious stereotypes against them in the eyes of onlookers. That includes
police actions that are based in specific evidence relating to a particular crime and thus do not count
as profiling at all.34 That fact that a police action might confirm and thus encourage prejudice is not
by itself an argument against that action. But it does illustrate some negative potential
consequences of it, which efforts could be made to reduce. For example, approaches to people for
extra questioning or searches at airports should be carried out discreetly if possible, and the
screening of everyone should be the preferred option if it does not provide significantly less security
than profiling would.35
32
Concluding Observations of the Committee on the Elimination of Racial Discrimination : United Kingdom of
Great Britain and Northern Ireland. 10/12/2003. CERD/C/63/CO/11. 21. “The Committee is concerned about
reported cases of "Islamophobia" following the 11 September attacks.”
33
Great London Authority (2007) The Search for Common Ground: Muslims, non-Muslims and the UK Media A
study for the Greater London Authority by the Insted Consultancy. Published by the GLA November 13, 2007
34
It has been put to me that such practices would fall within my definition of profiling on page 11 above. But
the kind of ‘association’ made by a witness when they describe a criminal is, normally at least, between certain
traits and a particular crime, rather than between certain traits and criminality in general or types of crimes. It
is arguable whether such an identification can be accurately described as an ‘association’ at all. Even if it can,
the association is ad-hoc, not systematic. For both of these reasons, it seems correct to draw a distinction
between the two kinds of practices.
35
This conclusion also holds against the claim that the profiling of discriminated-against groups in public
should be forbidden in all but the most exceptional circumstances because it puts its targets in a situation
where they cannot prevent onlookers seeing them in a demeaning way (i.e. as potential terrorists) and thus is
experienced as humiliating. This argument was put forward by Bou-Habib (2011).
21
Profiling ethnicity and reciprocity
Two further conditions for the permissible profiling of ethnicity should be mentioned, neither of
which is noted by the Recommendation. The first is that profiling should, as far as possible, be used
in ways that provide a net benefit, in this case in terms of security, to the ethnic group profiled.36
The ideal of reciprocity is fundamental to contemporary liberal ideas of what makes a political
community just. This ideal requires that everyone in society can be reasonably expected to freely
endorse the laws of society, even those which, like profiling, might impose unequal burdens on
them. In simpler terms, it requires that, as a whole, the rules of society should work in the interests
of everybody in society. It seems reasonable for those targeted by profiling to freely submit to it, if
the profile is based in evidence, carried out proportionately, does not contribute to prejudice and
hostility more than the best alternative, and also provides a benefit in the form of increased security
against terrorism to them.
A further requirement of reciprocity might be that if profiling is used against some ethnic groups it
should be used against all ethnic groups similarly situated.37 To illustrate, it is known that significant
numbers of British and European men travel to countries such as Thailand and Cambodia to engage
in criminal sexual activities with minors. The Cambodian tourism ministry estimates that a quarter of
tourists, which would amount to 4500 British people, visit their country for sex every year.38 Sex
offences committed abroad are punishable under British law.39 Yet between 1997 and 2003 only one
conviction had been upheld under that law.40 On the face of it, there is no reason to believe that
ethnic profiling could not be used to tackle these kinds of sex offences any less successfully than it is
used against Islamist terrorism. There may indeed have been moves by the British government to
profile British men flying from British airports to countries where sex tourism is prevalent, but there
is currently no information available indicating that it has. If ethnic profiling is not used in airports
against British men travelling to Cambodia, but it is used against nationals of predominantly Muslim
countries travelling to Europe, then this latter group would have a legitimate reason to complain
that they are treated unfairly. The unfairness lies in the implication that their privacy is valued less,
when balanced against potential benefits to security, than the privacy of other members of society.
Profiling people, places, and things
Profiling is nearly always of people. This is reflected in legal and academic texts relating to profiling.
For example, all of the EU documents regulating profiling have been addressed exclusively at the
profiling of terrorists. But in practice profiling is also used as a method of singling out places and
things for scrutiny. One of the conclusions that the DETECTER project has been increasingly
converging on is that the human rights and ethical risks posed by the scrutiny for counter-terrorism
purposes of suspicious places and things are less serious than those posed by the profiling of people.
This conclusion is supported by what has been argued thus far in this deliverable and in the Work
Package as a whole. Things and places do not have rights to or interests in privacy. Neither do they
have rights not to be discriminated against. This removes two of the most serious moral risks posed
36
This point was made originally by Risse and Zeckhauser (2005).
As Lippert-Rasmussen puts it, in a non-biased way. Lippert-Rasmussen Nothing Personal P.390
38
Marks Kathy ‘British sex tourists turn killing fields of Cambodia into paedophiles' playground’ The
Independent. Sunday, 5 January 2003 http://www.independent.co.uk/news/world/asia/british-sex-touriststurn-killing-fields-of-cambodia-into-paedophiles-playground-608990.html
39
UK Sex Offenders Act 1997 Part II Sex Offences Committed Outside the United Kingdom, Section 7.
40
Marks Kathy The Independent, Sunday, 5 January 2003
37
22
identified by this research project as being posed by counter-terrorism detection technologies.
Judgements of proportionality in relation to the profiling of places and things appear to collapse into
judgements of efficiency. If the profiling of things and places has the potential to be as effective or
nearly as effective as the profiling of people, then it would seem, at least on the face of it, that lawenforcement and public security agents should develop capacity in the former and cut back in the
latter.
This brief concluding section develops this position and draws some potential policy implications
from it. It defines the profiling of things and places and provides some examples of each. It then
examines how the ethical risks to privacy and equality identified by the analysis of the project as a
whole, and of this deliverable, might arise in relation to the profiling of places. A case-study of the
profiling of places is presented as an illustration.
The profiling of things
We can adapt a definition of terrorist profiling proposed by the Council of the European Union’s in
its 2002 Recommendation on the Development of Terrorist Profiles to the profiling of things. A
profile of a thing can thus be defined as a set of variables which have been identified as typical of
things involved in terrorist activities. One actual example of the profiling of things is the use of
bomb detection technology to examine freight packages or luggage in order to detect substances
that could be used to make explosives. Another might be the implantation of sensors in some
chemical materials. These sensors could release an alert if brought into contact with other materials
with which they could be used to make a bomb.41 Another example is the profiling of passports by
border agency staff to find stolen, forged, or counterfeit documents.42 Forged identity documents
are used by terrorists to enable them to travel and engage in other activities under assumed
identities. Passport profiles might include variables such as the country and city in which the
passport was issues, the date of issue, the paper on which it is printed, the quality of the watermark,
and so on.
In practice, the profiling of things may involve scrutiny of the people who own, produce, use or are
otherwise related to the thing profiled. Thus a person carrying a passport that matches a profile for
forged passports may eventually be taken out of the queue at a border for extra questioning.
Similarly, if an automatic alert is issued following the combination of two potentially explosive
substances, the person in whose possession they are found will be subject to investigation. But the
profiling of things remains distinct from the profiling of people in that it is something about the thing
itself, not the person to whom it is linked, that triggers the investigation. People are only
investigated once they have been linked to independently suspicious objects or substances. Thus any
invasions of privacy are likely to occur at a later stage of the investigation than they would in the
profiling of people, where behaviour and other traits must be monitored in the first place in order to
decide whether to proceed with the next stage of investigation. If an object is a personal possession,
such as luggage or a package, then scrutinising it might reveal private facts about a person. But the
41
Such use of detection technologies was mentioned in relation to radioactive materials in the discussion
between counter-terrorism practitioners in the focus group held as a follow-up to D17.3. See Annex to D17.3
p.9-10.
42
Presentation at Frontex European Day for Border Guards Conference, Presentation by Frank Paul, Head of
Unit, Large-scale IT-systems and Biometrics
23
luggage or package need only be linked to a specific person if something meriting further
examination is found.
As this suggests, the problem of over- and under-inclusive profiling (i.e. the investigation of innocent
people and the failure to investigate suspicious people) raises less serious human rights and ethics
concerns with the profiling of things. The fact that people are only subject to intrusion at the very
last stage of the investigation means, other things being equal, both that fewer people will be
targeted and that the evidence-base for targeting them will be stronger.
The risk of prejudice coming to inform the construction or application of profiles is also smaller with
the profiling of things. The handling and possession of radioactive or chemical materials is not
associated with one religious or ethnic group more than any other. While passport profiling may
result in the greater scrutiny of people with passports from certain countries, this unequal outcome
is not discriminatory if evidence and intelligence shows that counterfeit gangs are operating there.
Of course it is possible that some things that should not be considered suspicious might be, in which
case those people investigated for their possession of them might be subject to arbitrary or
discriminatory treatment. For example, an offence of possessing a document or record of
information that might be useful to a person committing or planning an act of terrorism was created
under article 58(1) of the UK Terrorism Act 2000. This category is just too broad for the profiling of
documents falling under it to be effective or justifiable. Using it as the basis for a profile would
permit the profiling of street maps, chemistry text books, train timetables and any other number of
perfectly innocuous documents. Subjecting someone to intrusive scrutiny such as questioning on the
basis of their possession of such objects alone would be arbitrary. Any justifiable policy of profiling
things would have to demonstrate the dangerousness of the objects or substances it targets. For the
measure to be efficient, the threshold of danger would have to be placed quite high, at a level
similar to reasonable suspicion.
To what extent might the profiling of things be a viable alternative to the profiling of people? It is
worth noting that the recent drive to increase and improve the profiling of people at airports was in
large part a response to the perceived ineffectiveness of bomb detection technologies.43 The fact
that the September 11th 2001 attackers did not even use bombs no doubt reinforced the concern
that looking for suspicious things would not identify terrorists. Nevertheless, it remains true that the
vast majority of terrorist attacks do involve the use of bombs and other illegal explosive substances.
Effective measures of tracking the components included in these substances, or issuing alerts when
components are mixed, would be of potentially great help in preventing terrorist attacks.
As noted in Section 3 above, increased scrutiny of people who come into contact with vulnerable or
dangerous substances, such as the water supply or nuclear waste, respectively, might also be
justified. Such measures would not fall under the profiling of people, as defined here, because they
are motivated by features of the things and not the behaviour of the people who come into contact
with them. Working in a nuclear laboratory is not suspicious behaviour, but the sensitivity of nuclear
material means that those who work with it can nevertheless be subject to legitimate security
checks by security services (as indeed are civil servants working on counter-terrorism policy). These
43
US Subcommittee on Aviation, Hearing on Aviation Security with a Focus on Passenger Profiling
http://www.house.gov/transportation/aviation/02-27-02/02-27-02memo.html
24
kinds of security measures complement the profiling of people. Whether, developed sufficiently,
they might obviate the need to profile people is a question this paper cannot attempt to answer.
The profiling of places
The profiling of places involves selecting as a basis for surveillance a combination of variables
considered indicative of the vulnerability of a place to terrorist attack or its tendency to be the site
of other terrorist activity. Like with the profiling of things, in the profiling of places it is something
about the place itself that triggers scrutiny, and not (primarily) something about the people found
there. Thus certain variables might identify a place as vulnerable to attack (i.e. many people collect
in crowds there; it is difficult or impractical to screen all people entering and exiting; terrorists have
used such places as the sites of attacks before). Actual examples of the profiling of places for
counter-terrorism purposes include the UK Metropolitan Police’s designation of some areas of
London as high-risk zones in which exceptional powers of surveillance are permitted. In practice the
profiling of places is likely to be more invasive than the profiling of things because it tends to involve
scrutinising all or some of the people in a certain area. The profiling of places might lead to the
profiling of people within those places, as indeed occurs at airports and in the Metropolitan Police’s
policy of stop-and-search. Nevertheless, when the profiling of people takes place within a
designated high-risk place it may, as was argued in Section 3 above, be less problematic ethically
than the profiling of people in other spaces, especially spaces that qualify as zones of privacy.
The profiling of places: the case of Project Champion
The profiling of places might also be a problem if the reason a place is profiled appears to have more
to do with behaviour or other traits of the kinds of people who frequent it than anything particular
about the place itself. In such cases, the distinction between the profiling of people and the profiling
of places may be blurred. One example of such a case can be found in the UK’s West Midlands Police
Counter-Terrorism Unit’s Project Champion. In 2007, three terrorist plots were foiled in the UK, two
of which involved car bombs and one of which involved plans to behead a Muslim soldier. The latter
plot involved men of Pakistani origin living in two residential areas of Birmingham. Under Project
Champion the West Midlands CTU installed these areas with smart ANPR/CCTV cameras in order to:
Create a vehicle movement ‘net’ around two distinct geographical areas within the city of
Birmingham, namely Alum Rock and Sparkhill. These areas were the focus of a large
percentage of their counter terrorist operations. [The second aim was to] capture valuable
CCTV evidence to compliment the vehicle data.44
The system was needed “in order to carry out surveillance operations against identified suspects
without having to follow them into and out of residential areas and therefore risk being
compromised”.
Despite this aim being the rationale for Project Champion, the policy had been described to the
people living within the net not as a counter-terrorism measure but as a public-security measure
that would increase the security of the community by aiming to:
bring a greater sense of safety for local residents and increase revenue into the area by…
contributing towards a cleaner and safer area, reducing antisocial behaviour and drug dealing
44
Taken from the West Midland Police Project Champion funding application and cited in Thames Police
Project Champion Review, by Sept 2010.p.7
25
activity, creating a secure and comfortable environment for residents and supporting the
wider development of the area in revenue and business terms45
However, it subsequently emerged that in fact no plans had been made for the West Midlands
Police’s Counter-Terrorism Unit to share the information with the local police, and thus enable these
community safety aims to be pursued.46
Two overlapping lines of objection were raised to Project Champion. The first concerned its
compatibility with norms of fairness and equality. The community were being expected to tolerate
what they felt was a significant invasion of privacy, an invasion not imposed on other communities
around the country, without receiving any particular benefits. People objected to this on the ground
that they were being asked to bear disproportionate burdens for benefits shared equally by all. In
ethical terms, we might understand this as an objection that the criterion of reciprocity was not
sufficiently respected. Reciprocity might have been respected had the technology actually been used
both to reduce the terrorist threat and in order to reduce the kind of low-level crime (shoplifting,
drug-dealing, vandalism, etc) that negatively affected the community. In that case, the community
would be receiving additional security benefits in exchange for the increased burden of surveillance.
Second, equality concerns arose in relation to the fact that these neighbourhoods were
predominantly inhabited by Muslims. The technology was not focused on the surveillance of some
people living there who, for other, specific reasons were deemed suspicious. Rather, it recorded the
data of all people entering and exiting, and it might be argued that this had a potentially stigmatising
effect on the Muslim community living there.
The measure also raised more straightforward issues of privacy. Location data such as that collected
through the use of ANPR has been identified in Deliverable 17.3 and 17.4 on the human rights
implications of selected technologies as personal data. Collecting the personal data of all people
within the geographical ‘net’ could be objected to on the ground that it is insufficiently targeted and
thus indiscriminate. The fact that smart CCTV cameras were to be linked to each other and the ANPR
system enabling images of people in cars and coming out of cars but also wide street-views was itself
invasive and subject to similar accusations of indiscriminateness. A further privacy concern related
to the nature of the zone being surveilled: these were primarily residential areas, and so CCTV
captured images of people’s houses. For all of these reasons, the policy may have had a significant
chilling effect on local activity in the area.
There are at least two ways in which the policy could have been adapted to address both equality
and privacy concerns. Firstly, it could have been genuinely designed to provide a benefit to the local
community by serving local policing and public security aims as well as counter-terrorism aims.
Secondly, it could have been adapted to be used in a more targeted, less indiscriminate way, by
focusing on particular premises and vehicles of interest. If this second measure had been taken, then
45
From the minutes of the West Midlands Police briefing to Councillors on 29 April 2009 cited in Ibid.p.30
“When the cameras went live at the completion of Project Champion (scheduled for May or June 2010)
there would have been no local facility to view the cameras and nobody in place to monitor them” Review
Team interview of the Project Champion project manager 19 August 2010, cited in Ibid, p.30. And “The Review
Team concluded that the project plans were never amended to take account of the wider crime reduction
purpose that was being marketed by the Safer Birmingham Partnership, with the result that the crime
reduction benefits would not have been delivered at the completion of the project” Ibid, p.31.
46
26
the first may not have been necessary, as the policy could not have been said to target an entire
community.
Conclusion
The profiling of suspicious things may be a relatively human rights and morally risk-free supplement
or alternative to the profiling of people. Therefore further research into technologies that confer a
capability on security officers to do this would be beneficial. The profiling of places is less likely to
raise ethical concerns when, other things being equal, the reasons for which it is profiled are
features of the place itself and not the people who frequent or occupy it, when the boundaries of
the place are as limited as possible and when the place is not a zone of privacy or a place in which
zones of privacy (such as homes) are concentrated.
27