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Law, Governance and Technology Series
Sub-series: Issues in Privacy and Data Protection 37
Olga Mironenko Enerstvedt
Aviation Security,
Privacy, Data Protection
and Other Human
Rights: Technologies
and Legal Principles
Issues in Privacy and Data Protection
Volume 37
Series editors
Pompeu Casanovas, Barcelona, Spain
Giovanni Sartor, Florence, Italy
Serge Gutwirth, Brussels, Belgium
Issues in Privacy and Data Protection aims at publishing peer reviewed scientific
manuscripts that focus upon issues that engage into an analysis or reflexion related
to the consequences of scientific and technological developments upon the private
sphere, the personal autonomy and the self-construction of humans with data pro-
tection and privacy as anchor points. The objective is to publish both disciplinary,
multidisciplinary and interdisciplinary works on questions that relate to experiences
and phenomena that can or could be covered by legal concepts stemming from the
law regarding the protection of privacy and/or the processing of personal data. Since
both the development of science and technology, and in particular information tech-
nology (ambient intelligence, robotics, artificial intelligence, knowledge discovery,
data mining, surveillance, etc.), and the law on privacy and data protection are in
constant frenetic mood of change (as is clear from the many legal conflicts and
reforms at hand), we have the ambition to reassemble a series of highly contempo-
rary and forward-looking books, wherein cutting edge issues are analytically, con-
ceptually and prospectively presented
More information about this series at http://www.springer.com/series/8808

Aviation Security, Privacy,

Data Protection and Other
Human Rights: Technologies
and Legal Principles
Aviation and ICT Law Consulting
Langhus, Norway
ISSN 2352-1902 ISSN 2352-1910 (electronic)

ISSN 2352-1929 ISSN 2352-1937 (electronic)
Issues in Privacy and Data Protection
ISBN 978-3-319-58138-5 ISBN 978-3-319-58139-2 (eBook)
DOI 10.1007/978-3-319-58139-2
Library of Congress Control Number: 2017941081
© Springer International Publishing AG 2017

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Preface
When I was finalizing this work, the worst incident in Russian/Soviet history of
civil aviation occurred. On 31 October 2015, terrorists blew up Airbus A321 during
its flight from Sharm el-Sheikh to St. Petersburg, killing 224 persons on board,
mostly Russians. Tragically, I found I needed to update my research with new sad
facts and figures. When people are killed, it hurts. When fellow citizens are killed,
the pain is doubled.
As a participant of a student exchange programme, I was in the USA at the
moment of the 9/11 attack. I flew from New York to Moscow in October 2001 and
experienced the more stringent security measures. A pair of small scissors was con-
fiscated from my hand baggage. I was living in Moscow when the worst terrorist
events occurred there, such as the Dubrovka Theatre siege in 2002 and bombing of
two flights by suicide terrorists in 2004. On 22 July 2011, I was living in Norway
and personally heard the explosion of bombs in government buildings in Oslo. One
of the guests invited to my wedding party a week later was unable to attend; her
close relative had been killed in the bombings of the government quarter in Oslo.
There have been other terrorist-related events in my life.
Turning from the personal to a more general perspective, I must say that although
not all these catastrophic events were aviation-related, almost all of them had some
influence on security regimes, including aviation. Flying from Oslo to Moscow and
back quite frequently, as well as other routes, I could not help but notice direct or
indirect consequences such as restrictions on liquids, having to remove shoes, metal
detectors at the entrance of the airport or body scanners. As a researcher in the field
of aviation security and data privacy, however, I know that these measures are only
the tip of the iceberg. The emerging mass of security-related data and the corre-
sponding impact on individual privacy are only in the beginning stage of
development.
My interest in aviation grew as a result of my work as a lawyer in a business avia-
tion company, Moscow Sky, operating internationally. I worked there during 2005–
2008. I have fond memories of my colleagues and the time I spent there. When I
then took the LLM degree in ICT law at the University of Oslo, I was very fortunate
v
vi Preface
to be able to combine aviation and data protection issues in my master’s thesis. The
topic concerned passenger name record agreements between the EU and the
USA. My master’s thesis was published by the Norwegian Research Center for
Computers and Law (NRCCL). I was privileged to have Professor Jon Bing as my
supervisor. Very sadly, he passed away in 2014.
Inspired by conversations with Jon Bing and the director of NRCCL, Professor
Dag Wiese Schartum, I decided to further develop the topic. The aim was to research
broader issues in civil aviation security versus privacy, data protection and other
human rights and – on a global level – to write a book. I completed the work in
2016.
First of all, I would like to thank Professor Dag Wiese Schartum. He has always
been very supportive, available for help and advice at any time and willing to pro-
vide valuable comments and ideas. I am also very thankful to Professor Lee Andrew
Bygrave, for his invaluable advice and comments, in particular on data privacy
issues.
I would like to thank Peter Burgess from PRIO for his encouragement of my
work at the initial stage, inviting me to relevant seminars and sharing contacts in the
civil aviation field. I would like to thank the Norwegian Civil Aviation Authority for
hosting a meeting at which they presented their organization and work. Many thanks
go to the personnel of the Norwegian airport operator Avinor, in particular to senior
security advisor Ole Folkestad, who was especially helpful in providing me with an
of understanding the use of technologies in modern airports. My gratitude also goes
to other relevant entities and persons, in particular from Norway and Russia, who
took the time to answer my questions.
I would also like to thank all colleagues at the NRCCL who have always been
very kind and friendly towards me. Special thanks go to the head of administration
of the Institute of Private Law, Eva Modvar, and then to her successor, Eli Knotten,
for their kindness and help with every practical issue I faced and for always being
available to provide support and advice. I would like to specially thank Tim
Challman for proofreading the final text and for offering valuable comments and
advice regarding the English language.
I am indebted to my family, especially to my mother, my husband Håken and our
children, Maria, Anna and Aleksander. Håken has been very kind and extremely
patient. He has been a willing babysitter and took good care of our small children,
while I was busy with the book and was unable to spend as much time with them as
I wished. This work is dedicated to my family. I love you.
Langhus, Norway Olga Mironenko Enerstvedt

Contents
1 Introduction................................................................................................ 1
1.1 Background and Subject Matter........................................................ 1
1.2 Aims of the Research........................................................................ 8
1.3 Approach of the Research................................................................. 9
1.4 Overview of the Structure................................................................. 13
Part I General Part

2 Protection of Privacy and Data Protection in Aviation Security........... 19
2.1 Introduction....................................................................................... 19
2.2 What Is Privacy and Data Protection................................................ 22
2.2.1 The Concept of Privacy......................................................... 22
2.2.2 The Concept of Data Protection............................................ 32
2.2.3 Relation Between Privacy and Data Protection.................... 39
2.3 Privacy and Data Protection Regulation........................................... 41
2.3.1 International.......................................................................... 41
2.3.2 EU......................................................................................... 44
2.3.3 National................................................................................. 51
2.4 Concluding Remarks......................................................................... 61
3 Other Human Rights in Aviation Security.............................................. 65
3.1 Introduction....................................................................................... 65
3.2 The Concept of Human Rights.......................................................... 67
3.2.1 Protection of Human Rights.................................................. 67
3.2.2 Limitations of Rights............................................................ 70
3.3 Right to Life...................................................................................... 74
3.4 Right to Health.................................................................................. 78
3.5 Right to Freedom of Movement........................................................ 80
3.6 Right to Equal Treatment and Non-discrimination........................... 85
3.7 Right to Freedom of Thought, Conscience and Religion.................. 88
3.8 Rights of the Child............................................................................ 91
vii
viii Contents
4 Civil Aviation Security............................................................................... 97

4.1 Introduction....................................................................................... 97
4.2 Security and Its Relation to Safety.................................................... 99
4.3 Civil Aviation and Civil Aviation Security by Numbers................... 101
4.4 Snapshots from History..................................................................... 108
4.4.1 The Earliest Days of Aviation – 1968................................... 108
4.4.2 1968–9/11.............................................................................. 109
4.4.3 Aftermath of 9/11.................................................................. 111
4.4.4 Recent Developments............................................................ 114
4.5 Aviation Security Concept................................................................ 117
4.5.1 Introduction........................................................................... 117
4.5.2 Risk Assessment.................................................................... 118
4.5.3 Assets.................................................................................... 121
4.5.4 Threats................................................................................... 122
4.5.5 Benefits.................................................................................. 131
4.5.6 Conclusion............................................................................ 136
4.6 Principles of Aviation Security......................................................... 137
4.7 Aviation Security Regulation............................................................ 140
4.7.1 International.......................................................................... 140
4.7.2 EU......................................................................................... 144
4.7.3 National................................................................................. 147
5 Legal Principles of Privacy and Data Protection.................................... 157
5.1 Introduction....................................................................................... 157
5.2 What Are Principles in This Research?............................................. 158
5.3 General Principles............................................................................. 163
5.3.1 Legality................................................................................. 164
5.3.2 Proportionality Principle....................................................... 174
5.4 Principles of Data Protection............................................................ 187
5.4.1 Purpose Limitation................................................................ 191
5.4.2 Minimality............................................................................. 194
5.4.3 Non-retention of Data Beyond a Certain Period of Time...... 195
5.4.4 Data Quality.......................................................................... 196
5.4.5 Data Security......................................................................... 197
5.4.6 Data Subject Influence.......................................................... 198
5.5 Concluding Remarks to Chap. 5 and to General Part....................... 201
Part II Special Part

6 Aviation Security Technologies................................................................. 205
6.1 Introduction....................................................................................... 205
6.2 Types of Aviation Security Measures................................................ 206
6.3 Body Scanners................................................................................... 212
6.3.1 Introduction........................................................................... 212
6.3.2 Millimetre Wave.................................................................... 215
Contents ix
6.3.3 Transmission X-Ray.............................................................. 230

6.3.4 Concluding Remarks............................................................. 233
6.4 Camera Surveillance......................................................................... 234
6.4.1 Introduction........................................................................... 234
6.4.2 Camera Surveillance at Airports........................................... 238
6.4.3 Biometrics, in Particular Facial Recognition........................ 247
6.4.4 Profiling................................................................................. 257
6.4.5 Behaviour Analysis, in Particular via CCTV........................ 262
6.4.6 In-Flight Camera Surveillance.............................................. 266
6.5 Passenger Name Records Systems.................................................... 269
6.5.1 Introduction........................................................................... 269
6.5.2 Effectiveness......................................................................... 273
6.5.3 Data Protection and Privacy Issues....................................... 276
6.5.4 Other Human Rights Issues................................................... 281
6.6 Technology and Freedom of Movement........................................... 281
6.7 Technology and Discrimination........................................................ 284
6.8 Modern Trends in Aviation Security................................................. 291
6.8.1 Introduction........................................................................... 291
6.8.2 Intelligence-Led, Pro-active and Risk-Based Approach....... 292
6.8.3 Global Information Sharing.................................................. 296
6.8.4 Randomness and Unpredictability........................................ 297
6.8.5 Combination of Security Measures....................................... 298
7 Analysis of Privacy and Data Protection Principles............................... 307
7.1 Introduction....................................................................................... 307
7.2 Legality............................................................................................. 308
7.2.1 Introduction........................................................................... 308
7.2.2 Information Openness and Transparency.............................. 308
7.2.3 In Accordance with the Law................................................. 317
7.2.4 Legitimate Aim...................................................................... 334
7.2.5 Conclusion............................................................................ 334
7.3 Proportionality.................................................................................. 335
7.3.1 Introduction........................................................................... 335
7.3.2 Suitability (Effectiveness)..................................................... 336
7.3.3 Necessity............................................................................... 337
7.3.4 Non-excessiveness................................................................ 343
7.3.5 Conclusion............................................................................ 343
7.4 Purpose Limitation............................................................................ 343
7.4.1 Introduction........................................................................... 343
7.4.2 Scans..................................................................................... 344
7.4.3 CCTV.................................................................................... 344
x Contents
7.4.4 PNR....................................................................................... 347

7.4.5 Conclusion............................................................................ 357
7.5 Minimality......................................................................................... 357
7.5.1 Introduction........................................................................... 357
7.5.2 Scans..................................................................................... 360
7.5.3 CCTV.................................................................................... 361
7.5.4 PNR....................................................................................... 366
7.5.5 Conclusion............................................................................ 370
7.6 Non-retention of Data Beyond a Certain Period of Time................. 371
7.6.1 Scans..................................................................................... 371
7.6.2 CCTV.................................................................................... 371
7.6.3 PNR....................................................................................... 373
7.7 Data Quality...................................................................................... 375
7.7.1 Scans..................................................................................... 376
7.7.2 CCTV.................................................................................... 377
7.7.3 PNR....................................................................................... 378
7.8 Data Security..................................................................................... 378
7.8.1 Scans..................................................................................... 379
7.8.2 CCTV.................................................................................... 379
7.8.3 PNR....................................................................................... 380
7.9 Data Subjects’ Rights........................................................................ 382
7.9.1 Consent.................................................................................. 382
7.9.2 Access, Rectification and Deletion....................................... 383
Part III Conclusion

8 Conclusion.................................................................................................. 397
8.1 Returning to Research Aims............................................................. 397
8.2 Regulation Issues.............................................................................. 398
8.2.1 Introduction........................................................................... 398
8.2.2 Legal Regulation................................................................... 399
8.2.3 Enforcement of Regulation................................................... 402
8.2.4 Legal Principles..................................................................... 404
8.2.5 Privacy Impact Assessment................................................... 409
8.3 Privacy by Design............................................................................. 413
8.4 Improving Passenger Experience...................................................... 417
8.4.1 Impact on Passengers............................................................ 418
8.4.2 Impact of Human Rights Concerns on Security.................... 419
Contents xi
Abbreviations................................................................................................... 423
Annexes............................................................................................................. 425
Annex 1: ICAO PNR Guidelines, PNR Data Elements............................... 425
Annex 2: EU-US PNR Agreement, PNR Data Types.................................. 426
Annex 3: EU PNR Directive, Passenger Name Record Data as Far
as Collected by Air Carriers......................................................................... 427
Annex 4: Russian PNR System, PNR Data Types....................................... 428
Selected Sources and Materials...................................................................... 431

Table of Legislation and Other Legal Texts................................................. 431
International............................................................................................ 431
European Union...................................................................................... 432
UK........................................................................................................... 434
Norway................................................................................................... 434
USA........................................................................................................ 434
Russian Federation.................................................................................. 434
Books and Articles....................................................................................... 435
Reports and Other Resources....................................................................... 450
Table of Cases
European Court of Human Rights
A. and Others v. the United Kingdom, No. 3455/05, 19 Feb 2009.

Ahmet Arslan and Others, No. 41135/98, 23 Feb 2010.
Aksoy v. Turkey, No. 21987/93, 18 Dec 1996.
Aktas v. France, No. 43563/08, declared inadmissible 30 Jun 2009.
Amann v. Switzerland, No. 27798/95, 16 Feb 2000.
Bayatyan v. Armenia, No. 23459/03, 7 Jul 2011.
Brannigan and McBride v. the United Kingdom, No. 14553/89, 25 May 1993.
Campbell v. the United Kingdom, No. 13590/88, 25 Mar 1992.
Case “Relating to certain aspects of the laws on the use of languages in education
in Belgium” v. Belgium, No. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63;
2126/64, 23 July 1968
Česnulevičius v. Lithuania, No. 13462/06, 10 Jan 2012.
Cyprus v. Turkey, No. 25781/94, 10 May 2001.
Dahlab v. Switzerland, No. 42393/98, declared inadmissible 15 Feb 2001.
El Morsli v. France, No. 15585/06, declared inadmissible 4 Mar 2008.
Erçep v. Turkey, No. 43965/04, 22 Nov 2011.
Fedorov and Fedorova v. Russia, No. 31008/02, 13 Oct 2005.
Gillan and Quinton v. the United Kingdom, No. 4158/05, 12 Jan 2010.
Huvig v. France, No. 11105/84, 24 April 1990.
Ireland v. the United Kingdom, No. 5310/71, 18 Jan 1978.
Kervanci v. France, No. 31645/04, 4 Dec 2008.
Khan v. the United Kingdom, No. 35394/97, 12 May 2000.
Klass and others v. Germany, No. 5029/71, 6 Sep 1978.
Kopp v. Switzerland, 13/1997/797/1000, 25 Mar 1998.
Kruslin v. France, No. 11801/85, 24 Apr 1990.
Lawless v. Ireland, No. 332/57, 1 July 1961.
Leander v. Sweden, No. 9248/81, 26 Mar 1987.
Leyla Sahin v. Turkey, No. 44774/98, 10 Nov 2005.
xiii
xiv Table of Cases
Liberty and Others v. the United Kingdom, No. 58243/00, 1 July 2008.
Lingens v. Austria, No. 9815/82, 8 July 1986.
Luordo v. Italy, No. 32190/96, 17 Mar 2013.
Malone v. the United Kingdom, No. 8691/79, 2 Aug 1984.
Marper v. the United Kingdom, No. 30562/04 and 30566/04, 4 Dec 2008.
McFeeley v. the United Kingdom, No. 8317/78, 15 May 1980.
Miazdzyk v. Poland, No. 23592/07, 24 Jan 2012.
Ollson v. Sweden, No. 10465/83, 24 May 1988.
Peck v. the United Kingdom, No. 44647/98, 28 Jan 2003.
Prescher v. Bulgaria, No. 6767/04, 7 Jun 2011.
Rangelov v. Germany, No. 5123/07, 22 Mar 2012.
Riener v. Bulgaria, No. 46343/99, 23 May 2006.
S and Marper v. the United Kingdom, No. 30562/04 and 30566/04, 4 Dec 2008.
Sejdić and Finci v. Bosnia and Herzegovina, No. 27996/06 and 34836/06, 22 Dec
2009.
Shimovolos v. Russia, No. 30194/09, 21 Jun 2011.
Soering v. the United Kingdom, No. 14038/88, 7 Jul 1989.
Stamose v. Bulgaria, No. 29713/05, 27 Nov 2012.
Uzun v. Germany, No. 35623/05, 2 Sep 2010.
Paul and Audrey Edwards v. the United Kingdom, No. 46477/99, 14 March 2002.
Bromiley v. the United Kingdom (dec.), No. 33747/96, 23 Nov 1999.
Finogenov and others v. Russia, No. 18299/03 and 27311/03, 20 Dec 2011.
European Court of Justice
Case C–70/10, Scarlet Extended SA v. Société belge des auteurs, compositeurs et

éditeurs SCRL (SABAM), 24 Nov 2011.
Case C-73/07, Satamedia, 16 Dec 2008.
Case C 362/14, Maximillian Schrems v. Data Protection Commissioner, 6 Oct 2015.
Case C-101/01, Lindqvist, 6 Nov 2003.
Case C-131/12, Google Spain SL, Google Inc. v. Agencia Española de Protección
de Datos, Mario Costeja González, 13 May 2014.
Case C-465/00, Rechnungshof decision, 20 May 2003.
Case C-524/06, Heinz Huber v. Bundesrepublik Deutschland, 16 Dec 2008.
Case T-13/99, Pfizer Animal Health SA v. Council of the European Union, 11 Sep
2002.
Joined Cases C 293/12 and C 594/12, Digital Rights Ireland Ltd v. Minister for
Communications, etc., 8 Apr 2014.
Joined Cases C-317/04 and C-318/04, European Parliament v. Council of the
European Union, European Parliament v. Commission, 30 May 2006.
Joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat
International Foundation v Council and Commission, 3 Sept 2008.
Table of Cases xv
Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut
Eifert v. Land Hessen, 9 November 2010.
Joined Cases C-141/12 and C-372/12, YS v Minister voor Immigratie, Integratie en
Asiel and Minister voor Immigratie, Integratie en Asiel v M and S., 17 July 2014.
USA
Arizona v. Evans, 514 U.S. 1 (1995), 1 March 1995.

EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011), 15 July2011.
Gilmore v. Gonzales, 435 F. 3d 1125 - Court of Appeals, 9th Circuit 2006, 26
January 2006.
Hasbrouck v. U.S. Customs and Border Protection, Case number C 10-03793 RS,
U.S. District Court, Northern District of California, filed 25 August 2010.
Pavesich v. New England Life Insurance Co. Supreme Court of Georgia, 122 Ga.
190; 50 S.E. 68; 1905 Ga., 3 March 1905.
Schmerber v. California, 384 U.S. 757 (1966), 20 June 1996.
Sima Prods. Corp. v. McLucas, 612 F.2d 309, 312–13 (7th Cir. 1980), 3 January1980.
United States v. Aukai, 497 F.3d 955-963 (9th Cir. 2007), 10 August 2007.
United States v. Dionisio, 410 U.S. 1, 14 (1973), 22 January 1973.
United States v. Epperson, 454 F.2d 769, 771 (4th Cir. 1971), 7 February 1972.
UK
Durant v. FSA [2003] EWCA Civ 1746, Court of Appeal (Civil Division) decision
of Lord Justices Auld, Mummery and Buxton (8 December 2003).
R v. Rooney [2006] EWCA Crim 1841 (12 July 2006).
List of Figures
Fig. 1.1 Privacy and data protection: overlap�� 4

Fig. 4.1 Aviation security system of Russia�� 149
Fig. 5.1 Proportionality principle applied to privacy and security�� 183
Fig. 6.1 Aviation security measures in a standard airport �� 209
Fig. 6.2 Aviation security measures in standard aircraft �� 211
Fig. 6.3 Aviation security measures scope�� 212
Fig. 6.4 Explosive in rectum; ceramic knife, metal knife, phone,
scissors and screw driver�� 230
Fig. 6.5 Privacy undertakings�� 232
Fig. 6.6 Video Analytics Processing�� 245
Fig. 6.7 Profiling processing �� 261
Fig. 6.8 Standard PNR system�� 276
Fig. 6.9 New security layers�� 292
Fig. 6.10 Combination of aviation security technologies and sources�� 299
Fig. 7.1 Proportionality principle applied to scans, CCTV and PNR �� 392
xvii
List of Tables
Table 2.1 Summary of national regulation and other features �� 62
Table 4.1 Aircraft safety occurrences worldwide (1921–2015)�� 105
Table 4.2 Aviation security and other relevant regulation
in the selected states�� 152
Table 6.1 Profiling in relation to selected aviation security measures�� 258
Table 6.2 Privacy/data protection application for CCTV�� 269
Table 6.3 Aviation security measures’ impact on privacy
and data protection�� 303
Table 6.4 Aviation security measures’ impact on human rights�� 304
Table 7.1 Aviation security measures and suitability and necessity�� 391
Table 7.2 Relation between aviation security measures
and privacy and data protection principles�� 391
Table 7.3 Relation between aviation security measures
and other human rights�� 392
xix
Chapter 1
Introduction
1.1 Background and Subject Matter
As the title of this work explicitly reflects, the discussion will mainly deal with two
groups of issues: aviation security and privacy, data protection and other human
rights. While aviation security is mainly aimed at preventing acts of unlawful inter-
ference with civil aviation1 and relates to the state’s undertakings to protect persons,
aircraft, airport facilities and other material assets from harm, there are also various
fundamental human rights instruments aimed at protecting not only the right to life,
but also other rights and freedoms of individuals.
“Individuals” or “persons”2 in both cases, within the civil aviation field, mean
people: air passengers, crew, and people on the ground.3 This research concentrates
on air passengers, since this category is the principal concern when it comes to
security screenings, personal data collection and transfer, as well as other methods
that impact on human rights. Although statistically only a small part of the worlds’
1
It is common to differentiate between two types of aviation: civil aviation and state aviation. Civil
aviation mainly refers to commercial and other needs of the citizens and economy. In this research,
civil aviation will mainly imply the commercial aspect and will refer to transportation of
passengers.
2
Used as synonymous.
3
People on the ground (non-passengers) may include different persons: those meeting their rela-
tives or friends at the airport arrival halls (they may be subject to a part of security control such as
metal detectors at the airport entrance, e.g. in Moscow), airport staff (are usually subject to special
control) or just people who can suffer being in the neighbourhood of a terrorist attack (e.g. if the
bomb is put in a car near the airport, or if the exploded airplane falls onto civil buildings, etc.).
Aviation security certainly endeavours to protect all these people as well. As I will explain in Sect.
4.5.3, aviation security covers the airport infrastructure too, thus, it extends to such elements as
airport train stations, taxi areas, etc. However, people on the ground are usually subject to a much
lesser degree of control/surveillance than passengers.
© Springer International Publishing AG 2017 1

O.M. Enerstvedt, Aviation Security, Privacy, Data Protection and Other Human
Rights: Technologies and Legal Principles, Law, Governance and Technology
Series 37, DOI 10.1007/978-3-319-58139-2_1
2 1 Introduction
population travels by air, this number is constantly growing,4 thus, aviation security
measures may potentially concern a substantial part of people.
Screenings and other aviation security measures at airports have become a part
of day-to-day life and culture for millions of people all around the world, so that
people seem to accept that there is no other way to keep them safe in the air.5 The
scope of these procedures, their obligatory nature, as well as possible negative con-
sequences in the event of failure to be subject to the security measures are outlined
for instance, in the airlines’ carriage conditions available on the websites:
Passengers and/or their baggage are subject to security screening, including but not limited
to, security profiling, physical pat-downs and inspections, x-ray screening, manual bag
searches, questioning of Passengers, and use of electronic or other detectors or screening or
security devices, in the sole discretion of the government, airport or UA (United Airlines),
and with or without the Passenger‘s presence, consent or knowledge. Neither UA nor its
employees or agents is liable for any damage, loss, delay (including refusal to transport),
confiscation of property, injury or other harm relating to or arising out of security screening
conducted by an agent of the airport or any local, state, or federal agency or a Passenger’s
failure to submit to or comply with such security screening.6
On the one hand, the general public often considers aviation security measures
that are designed to enhance security as positive developments. On the other hand,
it is clear that they have a heavy impact on the processing of passengers at the air-
port. For most travellers screening and other procedures constitute an additional
inconvenience and the most uncomfortable part of their entire journey.7 They are
time-consuming: before 9/11, the average checkpoint processed 350 passengers per
hour; today fewer than 150 per hour are processed,8 in some cases intrusively, with
increasing costs that are ultimately passed on to passengers.
The inconveniences to passengers definitely may include problems connected
with their rights as human beings. This is particularly important for this work: some
aviation security measures, technologies, or methods may have impact on the indi-
viduals’ rights, so that these rights may be interfered with, limited or violated. Civil
rights organizations and advocates cry out against violations of individuals’ liberties
and freedoms in aviation security.9
It should be noted that despite the fact that human rights are under threat in gen-
eral, i.e. this is a concern of all persons, only some individuals will ultimately bear
the full (or any) cost of the violations.10 Clearly, only a small selection of the air
passengers will be subject to additional screening due to profiling techniques or will
4
E.g. 3.3 billion passengers were transported in 2014 worldwide. See Chap. 4.
5
Simmons. Searching for Terrorists: Why “Public Safety” is not a Special Need (2009) p. 912.
6
Rule 20 Screening of passengers and baggage. United Air Lines, Inc. Contract of Carriage
(revised 31 December 2015), https://www.united.com/web/format/pdf/Contract_of_Carriage.pdf.
7
Ghee. Recommendations for airports and airlines to improve baggage, security, immigration,
arrivals and more in 2015 (2015).
8
IATA. Remarks of Tony Tyler at the IATA Ops Conference in Vienna, 15 April 2013. http://www.
iata.org/pressroom/speeches/Pages/2013-04-15-01.aspx.
9
See, e.g. websites of ACLU: http://www.aclu.org and EPIC: http://epic.org.
10
McDonagh. Risk, human rights and the bureacratisation of counter-terrorism (2011) p. 10.
1.1 Background and Subject Matter 3
be prohibited from flying due to their names appearing on a black list. However,
hypothetically, no one can be guaranteed that their name might appear on such a list
by mistake, or they might otherwise be targeted due to technologies’ false positives.
Thus, the fact that the potential rights violation pertains to only a few does not make
the problem of possible violations less important.
The key word for security measures is surveillance, which can be defined as “the
focused, systematic and routine attention to personal details for purposes of influ-
ence, management, protection, or direction”.11 There are multiple forms of surveil-
lance; for aviation security, most common forms include camera surveillance
(CCTV – Closed Circuit Television),12 the use of biometrics, the use of data mining
and profiling.13
At the same time, a dual nature of surveillance can be noted: on the one hand,
surveillance, if properly used, can contribute to security, protection from crimes, but
on the other hand, surveillance itself may present a threat to individuals, communi-
ties and societies because of its ubiquity, intensity and use of personal data; more-
over, it is argued that “broad surveillance is a mark of bad security”.14 Government
surveillance is directed at all of persons, including innocent people, and this is nor-
mally done in secret, with little or no oversight.15 Although there are democratic
procedural constraints, effective oversight and control may be very difficult to
ensure as long as the power is exercised by large companies, state organizations and
intelligence agencies.16
As a result, citizens are often unaware of the most questionable surveillance
methods, such as camera surveillance, creation and storage of different dossiers and
black lists that may affect the ability to fly, require additional screening, etc. In a
state of mass surveillance, personal rights and freedoms are severely limited, as
clearly predicted in Orwell’s book “1984”.
In the public debates, the right to privacy is frequently the first to be mentioned
in this regard. Many security measures and technologies provoke “anxiety, protest,
and resistance”17 specifically in relation to privacy. “Security versus privacy” has
become a common expression. In 2013, the enhanced discussion of privacy, mainly
in connection with PRISM and the Edward Snowden revelations as well as the
removal of “naked” body scanners from American airports and other events, made
Dictionary.com declare “privacy” word of the year.18 However, is it merely a word
11
Lyon. Surveillance studies: An overview (2007a) p. 14.
12
In the literature, “CCTV” is used as generic term camera surveillance. Although CCTV does not
amount to camera surveillance, as explained in Chap. 6, these terms will be used as synonymous
in this research.
13
All these terms will be elaborated in detail in Chap. 6.
14
Wright [et al.] Questioning surveillance. In: Computer Law & Security Review. Vol. 31 (2015)
pp. 281–282, Schneier Schneier on security (2008) pp. 8, 69.
15
ACLU. Surveillance and Privacy. http://www.aclu.org/national-security/surveillance-privacy
16
Wright et al. (2015) p. 282.
17
Nissenbaum. Privacy in context (2010) p. 3.
18
Dictionary.com: http://blog.dictionary.com/author/dictionary-com-blog/. 17 December 2013.
4 1 Introduction
Fig. 1.1 Privacy and data

protection: overlap
of the year? Schneier calls security versus privacy “the battle of the century:” which
of these values is more important, how much privacy are you willing to give up for
security?19
In this respect, it should be stressed that the rights to privacy and data protection
are interrelated and partly overlap, as shown in Fig. 1.1.
The key words for this research from Lyon’s definition of surveillance are “per-
sonal details”. The point is that personal data have direct relation to the rights of
privacy, which protects, among other things, private information20 pertaining to
individuals, and data protection, which can be seen as one of the dimensions of
privacy or as a separate right.
It is not surprising, then, that the term “data privacy” is commonly used, or the
term “dataveillance” used in reference to the phenomenon of data being used to
monitor and surveil citizens.21 Through extensive data protection regulation, at least
in the EU and some other states, it is quite clear that data – if they satisfy the require-
ments of being personal and being processed22 – should be protected. The term “pri-
vacy”, however, is less clear.
Consequently, a question arises as to what privacy is. Numerous theoretical con-
ceptions have been advanced as definitions for the term, but none of them has
become common or universally accepted. Moreover, persons’ views on this value
do not remain static and can change according to the context, other needs and other
factors. In many books and articles, the death or the end of privacy is predicted,23
mainly due to total surveillance and pervasive databases. Everything depends, of
course, on what one means by the term privacy. Clearly, privacy as total secrecy is
not the most suitable today,24 nor applicable, especially in public places such as
airports. However, privacy nevertheless can be protected, but this should be done
taking the new contexts into account. In the airports, the context – providing a viation
19
Schneier (2008) p. 69.
20
Data and information are used as synonyms in this research.
21
Clarke. Information technology and dataveillance. In: Communications of the ACM. Vol. 31
(1988). p. 498–512.
22
See Chap. 2.
23
E.g. Garfinkel. Database nation: the death of privacy in the 21st century (2000), Rubenfeld. The
End of Privacy. In: Stanford law review (2008). In January 2015, Science dedicated its special
issue to “The end of privacy”.
24
Solove. The end of privacy? In: Scientific American. Vol. 299 (2008b) p. 104.
security to the passengers – and distinguishing between different types of privacy

are key factors for defining privacy.25
From a broader perspective, privacy can be considered a component of other
human rights, a necessary condition for them to function: without privacy, “it is
much harder for dissent to flourish or for democracy to remain healthy and robust”.26
The status of the right to privacy in a particular society can demonstrate, first, what
is being sacrificed to security, and secondly, the status of all human rights as the
whole, since this right is “the fundamental precondition so that other rights and
liberties can be exercised”.27 The right to privacy is not only an individual value, but
a common, political value as well, since the abuse of privacy by surveillance tech-
nologies may lead to authoritarian regimes having an impact on the population as a
whole.28 In this situation, on the one hand, privacy can be seen as an antidote to
surveillance29: raising its status can contribute to upholding all human rights. On the
other hand, the weakness of privacy in a particular society is as a rule accompanied
by other human rights concerns.
The point is that all human rights are interdependent, indivisible and interrelat-
ed.30 This means that violating one right may often impair the enjoyment of other
human rights, and vice versa. This idea can be well illustrated by the aviation secu-
rity measures: in addition to privacy/data protection concerns, they often have
impact on other fundamental human rights, in particular, the right to equal treatment
and non-discrimination, freedom of movement, etc. Accordingly, the right to pri-
vacy alone cannot accommodate all of the negative effects of aviation security.
Hence the scope of the issue is argued to be broader – human rights versus secu-
rity or liberty versus control31 – since humans are interested in both security and
other human rights, and it is the state and other agencies’ control and surveillance
functions that interfere.
It should be noted that the term “aviation security” can be seen in two dimen-
sions. First, aviation security is ultimately aimed at protecting, among other things,
the right to life of passengers and other persons. In other words, all human beings
have the right to be safeguarded from harms – it is also possible to speak about the
individuals’ right to security.32 Therefore, security involves elements of human
rights. Effective security in this sense contributes to the right to life. The latter
belongs to peremptory norms or jus cogens, that is, not being subject to any
25
See Chap. 2.
26
Vermeulen and Bellanova. European ‘smart’surveillance: What’s at stake for data protection,
privacy and non-discrimination? In: Security and Human Rights. Vol. 23 (2013) p. 305.
27
Poullet. Data protection legislation: What is at stake for our society and democracy? In:
Computer Law & Security Review. Vol. 25 (2009) p. 226.
28
Vermeulen and Bellanova (2013) p. 305.
29
Amicelli. Report on Theoretical Frameworks and Previous Empirical Research (2012a) p. 14.
30
See Vienna Declaration and Programme of Action (A/CONF.157/23), adopted by the World
Conference on Human Rights, held in Vienna, 14–25 June 1993.
31
32
See Lyon. Surveillance after september 11 (2003a).
6 1 Introduction
d erogation. Taking into account the threats of terrorism and the amount of harm that
may cause a successful attack on an aircraft, the right to life may be used as a strong
argument for the enhanced security.
Secondly, aviation security, as defined in legal instruments, involves in general
different measures and human and material resources intended to safeguard civil
aviation against acts of unlawful interference that may jeopardize the security of
civil aviation.33 In the civil aviation sector, the necessity of safeguarding people
from terrorism and crime is obvious. Moreover, this sector has immense importance
to the world economy. Its assets, aircraft, airports and infrastructure, constitute con-
siderable economic value and should be protected as well. At the same time, the
threat of terrorist attacks against civil aviation is deemed to be heightened. Hence,
the connection between the threats and advanced security measures seems to be
clear. The latter is a logical consequence of the former.
The aviation security-privacy dilemma is quite visible here: implementation of
different measures, procedures and methods is designed to protect individuals, but
may have tensions with the individuals’ rights. A clear result is what Lyon calls a
paradox – the side effect that many aviation security measures justified by security
risks and fight against terrorism actually produce risks themselves – in relation to
privacy, data protection and other liberties.34 Compromises to privacy/data protec-
tion/other human rights can be considered as the costs to be paid for a security
decision.
Actual surveillance may start long before you enter the airport, for instance, at
the moment you reserve a plane ticket and fill out various personal data fields.
Different systems collect personal data of passengers, use and share them with other
systems for further checks, data mining, profiling and so on. The opportunities for
surveillance are constantly growing along with technological developments: high-
tech “smart” camera surveillance using biometrics, body scanners, security tunnels
and so on.
What is next? How much security is enough? How far can the states and security
organs go in their attempts to find the most effective measures? To illustrate an
absurd situation, security professionals ironically demonstrate a picture of “security
of the future” showing naked passengers on board the aircraft, i.e. deprived of any
privacy at all. In general, “If passengers are divesting items and holding their arms
up like criminals, then the terrorists have won by fundamentally changing our core
values”.35
A common suggestion is the idea of finding a balance between the privacy and
security values. In other words, we should balance privacy or, broadly stated, liberty
against security using the so-called trade-off model. More details will be elaborated
in Chap. 5, but in general, it is not possible to increase one of the values without
decreasing the other.
33
Article 3 of Regulation No 300/2008.
34
Lyon. Globalizing Surveillance Comparative and Sociological Perspectives. In: International
Sociology. Vol. 19 (2004) p. 137.
35
Sagi-Dolev. Manufacturer Perspectives. In: Aviation Security International. Vol. 19 (2013) p. 26.
This is easy to understand. It is obvious that security, which is vital to survival,

is more important than privacy, which is a social and political need but is not an
immediate matter of survival.36 To the contrary: in the worst case, privacy can be
seen as “a mere abstraction, a luxury with little concrete value”.37 Only when the
security needs are satisfied is it possible to consider the privacy needs at all.38 Thus,
frightened by terrorist attacks, people tend to choose security over privacy. In these
circumstances, the process of balancing became a strategy of the security measures
proponents,39 where the risks of terrorism and crime are supposed to rationalize the
need for enhanced security measures, typically exemplified by the enhanced mea-
sures introduced after the 9/11 attacks.
The balancing concept is subject to criticism, first because it justifies the com-
promises to privacy and other human rights.40 It is proposed that instead, the test of
proportionality should be used. By using the latter, it can be evaluated whether a
concrete security measure is suitable, necessary, without any other less intrusive
alternatives, non-excessive, and so on. Applying these criteria allows us to assess
whether the privacy risks caused by this measure are proportionate to its security
benefits and other factors.41 In addition, mechanisms of protection, including redress
for abuses, are actually provided by the concept of human rights in general and
privacy/data protection regimes in particular.42
To summarize: aviation security as an element of human rights contributes to the
right to life (or freedom from harm), constituting a good argument for enhanced
security. At the same time, aviation security as such, i.e. as broader security demands
including measures, resources, security decisions, evaluation of threats, risk assess-
ment, etc. – overall leads to enhanced surveillance and control and, consequently, to
human rights concerns.
The dilemma to be examined in this work conveyed through the widespread
expression “security versus privacy” is the aviation-security-versus-privacy-data-
protection-and-other-human-rignts dilemma. The rights to privacy and data protec-
tion are the focus of this research and are used to evaluate the selected security
measures. But, since other human rights may be relevant, and, as discussed, aviation
security is a matter of human rights, they will also be discussed on an additional
basis to better reflect the situation: simultaneous violation of a number of human
rights makes the whole aggregated impact of aviation security measures on an indi-
vidual more serious. For the convenience of the reader, further, the term “security
36
37
Spencer. Security Versus Privacy: Reframing the Debate. In: Denver University Law Review.
Vol. 79 (2002) p. 519.
38
Aquilina. Public security versus privacy in technology law: A balancing act? In: Computer Law
& Security Review. Vol. 26 (2010) p. 135.
39
Spencer (2002) p. 519.
40
See Chap. 5.
41
See Chap. 5.
42
See Chaps. 3 and 2 respectively.
8 1 Introduction
versus privacy” will be used as synonymous to “aviation security versus privacy,

data protection and other human rights”.
Since this research will use the proportionality test rather than balancing as an
approach to the dilemma, the latter cannot be considered exclusively as a tension
between opposites. Both values are important for society; what is needed is to find
a way to ensure all of them, without losing one or the other. The “ideal” model of
interactions between aviation security and privacy, therefore, will be aviation secu-
rity plus privacy, aviation security and privacy.
1.2 Aims of the Research
As a result of existing research, it is quite well known that security measures, includ-
ing those in aviation security, have tensions with human rights in general and with
privacy and data protection specifically. However, the pro-privacy side focuses on
privacy interests rather than aviation security interests. The latter tends to remain in
the “shadows”. In addition, substantial research covers mainly the EU, the USA and
the Western states in general. There is some lack in the research at the international
level and at the national level of non-Western states.
Using existing research extensively, this work analyses different security mea-
sures, methods and technologies in civil aviation from the perspective of their
impact on the rights to privacy and data protection as well as related individuals’
rights, including the right to health, freedom of movement, the right to equal treat-
ment and non-discrimination, freedom of thought, conscience and religion, and
rights of the child. In short, the main objective is to discuss what can be considered
proportionate security, taking into account privacy/data protection other human
rights concerns.
The following sub-aims can be indicated.
1. To discuss whether the use of the selected aviation security measures: body scan-
ners, camera surveillance and Passenger Name Record (PNR) systems43
(“selected measures”), in particular their impact on privacy and data protection,
corresponds to legal principles of privacy and data protection. Thus, to some
extent, the research will analyse the situation de lege lata – but subject to limita-
tions and on an illustrative basis.44
2. To describe the selected measures, their background, emergence and contempo-
rary usage. In other words, the situation will be analysed de facto. This is particu-
larly important, since for privacy/liberty-security debate, not only privacy/liberty
interests, but also security interests should be better understood and more
43
Transfer of air passenger data from airlines to state authorities, with further analysis of these data
for security and other purposes. See more details in Chap. 6.
44
See more details below.
1.3 Approach of the Research 9
eaningfully evaluated.45 This is the reason for the fairly detailed analysis of
m
aviation security background, importance of civil aviation, aviation security con-
cepts, effectiveness matters etc. and the specific aviation security measures in
this research.
3. To analyse options for rectification and recommendation – i.e., to discuss legal
policies, how the situation should be – de lege ferenda. Legal principles of pri-
vacy and data protection will be used as the basis. I stress that this aim refers
mainly to general insights rather than to proposing a comprehensive framework
for the reform.
I will also draw attention to specific issues relating to legal, technological and
other developments in aviation security and privacy/data protection which, in my
opinion, present the most controversial and problematic issues relating to aviation
security-privacy dilemma.
1.3 Approach of the Research
This research differs from traditional legal research. While it involves three levels of
regulation (international, regional and national), deep and comprehensive analysis
of legal regulation at all these levels would be unrealistic. Thus, I have chosen to use
legal principles as a basis for analysis, and to use legal regulation to first explain
principles and secondly for their illustrations. In addition, the use of legal principles
has other advantages.
As will be explained in Chap. 5, legal principles can be applied to any jurisdic-
tions considered in this work. Since technological development is rapid and legisla-
tion is not, to evaluate selected aviation security measures, we can apply legal
principles to aviation security measures on a case-to-case basis in an effort to iden-
tify problems and deficiencies, to identify and analyse the options for rectification
and recommendation. Moreover, principles enable an easier exchange of views
across legal regimes and between various professions involved in the aviation
security-privacy debate. Thus, for research like this, which implies various jurisdic-
tions and interests, the analysis of legal principles rather than legal regulation has a
pragmatic goal, and is aimed to suggest an effective model for approaches to the
aviation security-privacy dilemma.
Respective legal regulation, in particular, applicable international and EU instru-
ments, along with relevant case law, will be used as the sources of the legal princi-
ples. For illustration of principles, “regulatory cases” from the EU and some national
regimes: the United Kingdom of Great Britain and Northern Ireland (UK), Norway,
the United States of America (USA), and Russian Federation (Russia, RF) (“selected
states”) will be used.
45
Solove. Nothing to hide: The false tradeoff between privacy and security (2011) p. 3.
10 1 Introduction
Civil aviation can be characterized by strong international character and increased

travel. Globalization46 and technological developments have led to increased avail-
ability and circulation of personal data worldwide. Due to these and other global
trends, and keeping in mind that fundamental human rights belong to every person
independently of any citizenship, the analysed aviation security-privacy dilemma is
(or should be) a relevant topic anywhere in the world where civil aviation and avia-
tion security exists. The analysis of international dimensions is therefore of a great
importance. In order to improve privacy and data protection under the new security
regimes, it is necessary to have the knowledge of the international context and inter-
national efforts in both privacy and security.
The choice of the EU’s framework is not accidental. First, as mentioned above,
legal principles of privacy and data protection which are central tools for this
research derive from international and/or EU law. Secondly, in the field of data pro-
tection, Europe is known as the world leader. The EU Data Protection Directive has
been implemented across EU Member States and served as model law for many
other states.
National perspectives are important too. National illustrations will ensure a
broader and a more comprehensive picture. Clearly, the aviation security measures
are concentrated at the airports related to definite states; passenger personal data
ends up at national law enforcement, security and intelligence organs, etc. Thus, for
concrete illustrations of aviation security regimes, definite national regimes will be
used as examples. This concerns both regulatory and technological “cases”.
Four states were chosen for this purpose: the UK, Norway, the USA, and Russia.
The choice of the states was greatly influenced by my language capabilities (English,
Russian and Norwegian),47 which played a key role in providing access to the mate-
rials available.
I acknowledge that illustrations from national regimes will be given without car-
rying out a legal comparative analysis that includes a systematic and extensive com-
parison of the jurisdictions. I also acknowledge that a problem arose pertaining to
the availability of materials at different levels, especially national ones that differ
greatly both quantitatively and qualitatively, leading to asymmetry of information at
different levels and consequently asymmetry in the analysis. The difference also
may occur due to the need to cover specific issues in more detail.
The selected aviation security measures were chosen due to a number of factors:
they relate to air passengers; they all are argued to enhance security; their use is
growing, and they all may have significant impact on privacy/data protection/other
human rights. Moreover, they all are emerging technologies, that is, technologies
46
Globalization is a multidimensional phenomenon, which involves a deepening and broadening of
rapid transboundary exchanges due to developments in technology, communications, and media.
Such exchanges create a more interdependent world. See Shelton. Protecting Human Rights in a
Globalized World. In: BC Int’l Comp. L. Rev. Vol. 25 (2002) p. 275.
47
Whenever possible, the research uses English versions of Russian and Norwegian sources or
their official translations into English, with indication of sources. In all other cases, unless speci-
fied otherwise, the translations are the author’s.
1.3 Approach of the Research 11
under development; they may present central future security measures, not only
within civil aviation. These measures are hence central aviation security measures
for this research.
At the same time, there are other security techniques and methods that may serve
a part of the selected measures, or be connected to them directly or indirectly. What
is important is that they may have influence on the aviation security and privacy
dilemma, for instance, by increasing effectiveness or by raising additional concerns,
contributing to the measure’s aggregated impact on passengers’ rights. Hence, they
will be discussed as well, in the amount necessary to understand the technique in
general, focusing on some specific features in the context of the selected measures.
This includes biometrics, profiling, and behaviour analysis. Moreover, more general
trends and approaches in modern aviation security may have additional impact on
the dilemma and will therefore be discussed too.
It should be noted that in contrast to other legal works whereby the legal require-
ments influence and determine the relevance of technological features,48 in this
research, technological descriptions are determined by the technology’s functions
with potential impact on individuals’ rights. In other words, the technology descrip-
tion is first functional, with the primary aim to show the “meeting point” of the
technologies and human beings.
Obviously, for these purposes, not all technical and operative capabilities are
essential, but only those which may have impact on human rights, including techni-
cal safeguards to protect these rights. Hence, only selected relevant features are
chosen and analysed, with subsequent evaluation of the applicability of human
rights and operation of legal principles: how effective is the technology for protec-
tion of the right to life?; which other concerns for human rights arise?; how serious
are they?; are there technical safeguards that are able to protect the rights? etc. The
technology may entail different applications, different safeguards and thereby pro-
duce different impacts. These different variants should also be described.
As a result, the technological and operational description in this research is
broader than is usually found in legal works. This can be considered an advantage,
since details about aviation security technologies are not thoroughly addressed by
legal research. In addition, people in general are unaware of many aviation security
technologies’ capabilities and usage, and not all passengers regularly read Aviation
Security International and similar journals. Thus, this work can contribute to better
awareness, at least for its readers.
At the same time, there is a problem of missing information in respect of aviation
security. An important aspect here is the degree of openness of information in avia-
tion security. This issue will be discussed in more detail in Chap. 5 on the subject of
the principle of legality, but in short, aviation security, which falls within national
security, is characterized by a high amount of restricted information. This can be
understandable, since security must be safeguarded. It is essential for the security
system to keep many of its elements confidential: the more information about the
48
See e.g. Ibid.
12 1 Introduction
security system is made available, the more vulnerable it is. Release may constitute
a threat of security.
As the result of limited information, a legal researcher with specific requirements
to the study faces a problem with description of some facts.49 In the case of this
research, information about many processes and issues in aviation security is miss-
ing, in particular, where exactly some of the discussed technologies are used, the
details about technical and operative characteristics of the measures, criteria of risk
assessment and effectiveness, etc. Indeed, it can be difficult to rely on facts lacking
some essential details or that are unclear or controversial. This leads to a degree of
uncertainty when analysing the proportionality of the regimes in this work.
Another challenge is that aviation security measures as well as technologies and
operational procedures designed to ensure the individual’s rights are subject to
quick and constant changes and further development. Thus, while finalizing this
research, I tried to update references to all legal sources, facts, figures, technological
features, etc. on which the research is built. The presentation of law in this book is
current law as of 5 October 2016. Unless otherwise specified, all cited websites
were last accessed on that date.
However, not all sources could be sufficiently updated. This creates a potential
risk that some facts/numbers used in this research might be outdated. Nevertheless,
this problem can be seen mitigated by a global and general character of this work,
where details are used mainly as illustrations, and the fact that changes in the anal-
ysed spheres are inevitable anyway.
In summary, due to the presented challenges and reasons, the research cannot be
considered an all-encompassing and comprehensive evaluation of the current
regimes capturing all the relevant details and presenting “the ultimate truth”, but
should rather be seen as a contributing perspective, suggesting that further research
is needed.
At the same time, the research is aimed to concentrate on principal issues on
aviation security versus privacy rather than details, thus, can be applicable to future
regimes as well as regimes beyond aviation security field, wherever/whenever the
individual’s rights may be compromised under the motto of security needs/
precautions.
As a matter of contribution to the existing research, a number of features of this
research can be highlighted.
1. This research endeavours to present the aviation security interests more thor-
oughly than is usually done in privacy-security debates. Thus, it is an attempt to
go deeper into aviation security perspectives than is usually done in security-
privacy debates. Civil aviation is a sector in which the risks of terrorism are
highlighted, and with the most advanced and sophisticated security measures if
compared with other transport modes or other public places. For better under-
standing of how the situation became what it is, why this sector requires enhanced
protection, as well as the logic of aviation security decisions (which exactly
49
Andersen. Edb og ansvar. Jurist-og Økonomforbundets Forlag (1988) p. 29.
Another random document with
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gulf of crime. Having resolved on the means to be employed in the
murder, she sent for a quondam servant of her father, Robert Weir,
who lived in the neighbouring city. He came to the place of
Waristoun, to see her; but it appeares her resolution failed, and he
was not admitted. She again sent for him, and he again went. Again
he was not admitted. At length, on his being called a third time, he
was introduced to her presence. Before this time she had found an
accomplice in the nurse of her child. It was then arranged that Weir
should be concealed in a cellar till the dead of night, when he should
come forth, and proceed to destroy the laird as he lay in his chamber.
The bloody tragedy was acted precisely in accordance with this plan.
Weir was brought up at midnight from the cellar to the hall by the
lady herself, and afterwards went forward alone to the laird’s
bedroom. As he proceeded to his bloody work, she retired to her bed,
to wait the intelligence of her husband’s murder. When Weir entered
the chamber, Waristoun awoke with the noise, and leant inquiringly
over the bed. The murderer then leapt upon him. The unhappy man
uttered a great cry. Weir gave him some severe blows on vital parts,
particularly one on the flank vein. But as the laird was still able to cry
out, he at length saw fit to take more effective measures. He seized
him by the throat with both hands, and, compressing that part with
all his force, succeeded, after a few minutes, in depriving him of life.
When the lady heard her husband’s first death-shout, she leapt out
of bed, in an agony of mingled horror and repentance, and
descended to the hall; but she made no effort to countermand her
mission of destruction. She waited patiently till Weir came down to
inform her that all was over. Weir made an immediate escape from
justice, but Lady Waristoun and the nurse were apprehended before
the deed was half-a-day old. Being caught, as the Scottish law terms
it, “red-hand,”—that is, while still bearing unequivocal marks of guilt,
—they were immediately tried by the magistrates of Edinburgh, and
sentenced to be strangled and burnt at the stake.
The lady’s father, the Laird of Dunipace, who was a favourite of
King James VI., made all the interest he could with his Majesty to
procure a pardon; but all that could be obtained from the king was
an order that the unhappy lady should be executed by decapitation,
and that at such an early hour in the morning as to make the affair as
little of a spectacle as possible. The space intervening between her
sentence and her execution was only thirty-seven hours, yet in that
little time Lady Waristoun contrived to become converted from a
blood-stained and unrelenting murderess into a perfect saint on
earth. One of the then ministers of Edinburgh has left an account of
her conversion, which was lately published, and would be extremely
amusing, were it not for the loathing which seizes the mind on
beholding such an instance of perverted religion. She went to the
scaffold with a demeanour which would have graced a martyr. Her
lips were incessant in the utterance of pious exclamations. She
professed herself confident of everlasting happiness. She even
grudged every moment which she spent in this world as so much
taken from that sum of eternal felicity which she was to enjoy in the
next. The people who came to witness the last scene, instead of
having their minds inspired with a salutary horror for her crime,
were engrossed in admiration of her saintly behaviour, and greedily
gathered up every devout word which fell from her tongue. It would
almost appear, from the narrative of the clergyman, that her fate was
rather a matter of envy than of any other feeling. Her execution took
place at four in the morning of the 5th of July, at the Watergate, near
Holyrood-house; and at the same hour her nurse was burned on the
Castlehill. It is some gratification to know that the actual murderer,
Weir, was eventually seized and executed, though not till four years
afterwards.—Chambers’s Edinburgh Journal, 1832.
A TALE OF PENTLAND.
By James Hogg, the “Ettrick Shepherd.”
Mr John Haliday having been in hiding on the hills, after the battle
of Pentland, became impatient to hear news concerning the
sufferings of his brethren who had been in arms; and in particular, if
there were any troops scouring the district in which he had found
shelter. Accordingly, he left his hiding-place in the evening, and
travelled towards the valley until about midnight, when, coming to
the house of Gabriel Johnstone, and perceiving a light, he
determined on entering, as he knew him to be a devout man, and one
much concerned about the sufferings of the Church of Scotland.
Mr Haliday, however, approached the house with great caution, for
he rather wondered why there should be a light there at midnight,
while at the same time he neither heard psalms singing nor the
accents of prayer. So, casting off his heavy shoes, for fear of making a
noise, he stole softly up to the little window from whence the light
beamed, and peeped in, where he saw, not Johnstone, but another
man, whom he did not know, in the very act of cutting a soldier’s
throat, while Johnstone’s daughter, a comely girl, about twenty years
of age, was standing deliberately by, and holding the candle to him.
Haliday was seized with an inexpressible terror; for the floor was
all blood, and the man was struggling in the agonies of death, and
from his dress he appeared to have been a cavalier of some
distinction. So completely was the Covenanter overcome with horror,
that he turned and fled from the house with all his might. So much
had Haliday been confounded that he even forgot to lift his shoes,
but fled without them; and he had not run above half a bowshot
before he came upon two men hastening to the house of Gabriel
Johnstone. As soon as they perceived him running towards them
they fled, and he pursued them; for when he saw them so ready to
take alarm, he was sure they were some of the persecuted race, and
tried eagerly to overtake them, exerting his utmost speed, and calling
on them to stop. All this only made them run faster; and when they
came to a feal-dyke they separated, and ran different ways, and he
soon thereafter lost sight of them both.
This house, where Johnstone lived, is said to have been in a lonely
concealed dell, not far from West Linton, in what direction I do not
know, but it was towards that village that Haliday fled, not knowing
whether he went, till he came to the houses. Having no
acquaintances here whom he durst venture to call up, and the
morning having set in frosty, he began to conceive that it was
absolutely necessary for him to return to the house of Gabriel
Johnstone, and try to regain his shoes, as he little knew when or
where it might be in his power to get another pair. Accordingly, he
hasted back by a nearer path, and coming to the place before it was
day, found his shoes. At the same time he heard a fierce contention
within the house, but as there seemed to be a watch he durst not
approach it, but again made his escape.
Having brought some victuals along with him, he did not return to
his hiding-place that day, which was in a wild height, south of Biggar,
but remained in the moss of Craigengaur; and as soon as it drew
dark, descended again into the valley. Again he perceived a light in
the distance, where he thought no light should have been. But he
went towards it, and as he approached he heard the melody of
psalm-singing issuing from the place, and floating far on the still
breeze of the night. He hurried to the spot, and found the reverend
and devout Mr Livingston, in the act of divine worship, in an old void
barn on the lands of Slipperfield, with a great number of serious and
pious people, who were all much affected both by his prayers and
discourse.
After the worship was ended, Haliday made up to the minister,
among many others, to congratulate him on the splendour of his
discourse, and implore “a further supply of the same milk of
redeeming grace, with which they found their souls nourished,
cherished, and exalted.” The good man complied with the request,
and appointed another meeting at the same place on a future night.
Haliday having been formerly well acquainted with the preacher,
convoyed him on his way home, where they condoled with one
another on the hardness of their lots; and Haliday told him of the
scene he had witnessed at the house of Gabriel Johnstone. The heart
of the good minister was wrung with grief, and he deplored the
madness and malice of the people who had committed an act that
would bring down tenfold vengeance on the heads of the whole
persecuted race. At length it was resolved between them that, as soon
as it was day, they would go and reconnoitre, and if they found the
case of the aggravated nature they suspected, they would themselves
be the first to expose it, and give the perpetrators up to justice.
Accordingly, next morning they took another man into the secret,
a William Rankin, one of Mr Livingston’s elders, and the three went
away to Johnstone’s house, to investigate the case of the cavalier’s
murder; but there was a guard of three armed men opposed them,
and neither promises nor threatenings, nor all the minister’s
eloquence, could induce them to give way one inch. The men advised
the intruders to take themselves off, lest a worse thing should befall
them; and as they continued to motion them away, with the most
impatient gestures, the kind divine and his associates thought meet
to retire, and leave the matter as it was; and thus was this mysterious
affair hushed up in silence and darkness for that time, no tongue
having been heard to mention it further than as above recited. The
three armed men were all unknown to the others, but Haliday
observed that one of them was the very youth whom he saw cutting
off the soldier’s head with a knife.
The rage and cruelty of the Popish party seemed to gather new
virulence every day, influencing all the counsels of the king; and the
persecution of the Nonconformists was proportionably severe. One
new act of council was issued after another, all tending to root the
Covenanters out of Scotland, but it had only the effect of making
their tenets still dearer to them. The longed-for night of the meeting
in the old hay-barn at length arrived, and it was attended by a still
greater number than on the night preceding. A more motley group
can hardly be conceived than appeared in the barn that night, and
the lamps being weak and dim rendered the appearance of the
assembly still more striking. It was, however, observed that about the
middle of the service a number of fellows came in with broad slouch
bonnets, and watch-coats or cloaks about them, who placed
themselves in equal divisions at the two doors, and remained without
uncovering their heads, two of them being busily engaged taking
notes. Before Mr Livingston began the last prayer, however, he
desired the men to uncover, which they did, and the service went on
to the end; but no sooner had the minister pronounced the word
Amen, than the group of late comers threw off their cloaks, and
drawing out swords and pistols, their commander, one General
Drummond, charged the whole congregation in the king’s name to
surrender.
A scene of the utmost confusion ensued. The lights being
extinguished, many of the young men burst through the roof of the
old barn in every direction, and though many shots were fired at
them in the dark, great numbers escaped; but Mr Livingston and
other eleven were retained prisoners, and conveyed to Edinburgh,
where they were examined before the council and cast into prison.
Among the prisoners were Mr Haliday and the identical young man
whom he had seen in the act of murdering the cavalier, and who
turned out to be a Mr John Lindsay, from Edinburgh, who had been
at the battle of Pentland, and in hiding afterwards.
Great was the lamentation for the loss of Mr Livingston, who was
so highly esteemed by his hearers. The short extracts from his
sermons in the barn, that were produced against him on his trial,
prove him to have been a man endowed with talents somewhat above
the greater part of his contemporaries. His text that night it appears
had been taken from Genesis:—“And God saw the wickedness of man
that it was great in the earth, and that every imagination of the
thoughts of his heart was only evil continually.” One of the quoted
passages concludes thus:—
“Let us join together in breaking the bands of the oppressors, and
casting their cords from us. As for myself, as a member of this poor
persecuted Church of Scotland, and an unworthy minister of it, I
hereby call upon you all, in the name of God, to set your faces, your
hearts, and your hands against all such acts, which are or shall be
passed against the covenanted work of reformation in this kingdom;
that we here declare ourselves free of the guilt of them, and pray that
God may put this in record in heaven.”
These words having been sworn to, and Mr Livingston not denying
them, a sharp debate arose in the council what punishment to award.
The king’s advocate urged the utility of sending him forthwith to the
gallows; but some friends in the council got his sentence commuted
to banishment; and he was accordingly banished the kingdom. Six
more, against whom nothing could be proven farther than their
having been present at a conventicle, were sentenced to
imprisonment for two months; among this number, Haliday was one.
The other five were condemned to be executed at the cross of
Edinburgh, on the 14th of December following; and among this last
unhappy number was Mr John Lindsay.
Haliday now tried all the means he could devise to gain an
interview with Lindsay, to have some explanation of the
extraordinary scene he had witnessed in the cottage at midnight, for
it had made a fearful impression upon his mind, and he never could
get rid of it for a moment; having still in his mind’s eye a beautiful
country maiden standing with a pleased face, holding a candle, and
Lindsay in the meantime at his horrid task. His endeavours,
however, were all in vain, for they were in different prisons, and the
jailer paid no attention to his requests. But there was a gentleman in
the privy council that year, whose name, I think, was Gilmour, to
whose candour Haliday conceived that both he and some of his
associates owed their lives. To this gentleman, therefore, he applied
by letter, requesting a private interview with him, as he had a
singular instance of barbarity to communicate, which it would be
well to inquire into while the possibility of doing so remained, for the
access to it would soon be sealed for ever. The gentleman attended
immediately, and Haliday revealed to him the circumstances
previously mentioned, stating that the murderer now lay in the
Tolbooth jail, under sentence of death.
Gilmour appeared much interested, as well as astonished at the
narrative, and taking out a note-book, he looked over some dates,
and then observed—“This date of yours tallies exactly with one of my
own, relating to an incident of the same sort; but the circumstances
narrated are so different, that I must conceive either that you are
mistaken, or that you are trumping up this story to screen some
other guilty person or persons.”
Haliday disclaimed all such motives, and persevered in his
attestations. Gilmour then took him along with him to the Tolbooth
prison, where the two were admitted to a private interview with the
prisoner, and there charged him with the crime of murder in such a
place and on such a night; but he denied the whole with disdain.
Haliday told him that it was in vain for him to deny it, for he beheld
him in the very act of perpetrating the murder with his own eyes,
while Gabriel Johnstone’s daughter stood deliberately and held the
candle to him.
“Hold your tongue, fellow!” said Lindsay, disdainfully, “for you
know not what you are saying. What a cowardly dog you must be by
your own account! If you saw me murdering a gentleman cavalier,
why did you not rush in to his assistance?”
“I could not have saved the gentleman then,” said Haliday, “and I
thought it not meet to intermeddle in such a scene of blood.”
“It was as well for you that you did not,” said Lindsay.
“Then you acknowledge being in the cottage of the dell that night?”
said Gilmour.
“And if I was, what is that to you? Or what is it now to me or any
person? I was there on the night specified; but I am ashamed of the
part I there acted, and am now well requited for it. Yes, requited as I
ought to be, so let it rest; for not one syllable of the transaction shall
any one hear from me.”
Thus they were obliged to leave the prisoner, and forthwith
Gilmour led Haliday up a stair to a lodging in the Parliament Square,
where they found a gentleman lying sick in bed, to whom Mr
Gilmour said, after inquiring after his health, “Brother Robert, I
conceive that we two have found out the young man who saved your
life at the cottage among the mountains.”
“I would give the half that I possess that this were true,” said the
sick gentleman. “Who or where is he?”
“If I am right in my conjecture,” said the privy councillor, “he is
lying in the Tolbooth jail, under sentence of death, and has but a few
days to live. But tell me, brother, could you know him, or have you
any recollection of his appearance?”
“Alas! I have none,” said the other, mournfully, “for I was
insensible, through the loss of blood, the whole time I was under his
protection; and if I ever heard his name I have lost it, the whole of
that period being a total blank in my memory. But he must be a hero
in the first rank; and therefore, oh, my dear brother, save him
whatever his crime may be.”
“His life is justly forfeited to the laws of his country, brother,” said
Gilmour, “and he must die with the rest.”
“He shall not die with the rest if I should die for him,” cried the
sick man, vehemently. “I will move heaven and earth before my
brave deliverer shall die like a felon.”
“Calm yourself, brother, and trust that part to me,” said Gilmour.
“I think my influence saved the life of this gentleman, as well as the
lives of some others, and it was all on account of the feeling of
respect I had for the party, one of whom, or, rather, two of whom,
acted such a noble and distinguished part toward you. But pray,
undeceive this gentleman by narrating the facts to him, in which he
cannot fail to be interested.” The sick man, whose name, if I
remember aright, was Captain Robert Gilmour, of the volunteers,
then proceeded as follows:—
“There having been high rewards offered for the apprehension of
some south-country gentlemen, whose correspondence with Mr
Welch, and some other of the fanatics, had been intercepted, I took
advantage of information I obtained regarding the place of their
retreat, and set out, certain of apprehending two of them at least.
“Accordingly, I went off one morning about the beginning of
November, with only five followers, well armed and mounted. We
left Gilmerton long before it was light, and having a trusty guide,
rode straight to their hiding-place, where we did not arrive till
towards the evening, when we started them. They were seven in
number, and were armed with swords and bludgeons; but, being
apprized of our approach, they fled from us, and took shelter in a
morass, into which it was impossible to follow them on horseback.
But perceiving three more men on another hill, I thought there was
no time to lose, so giving one of my men our horses to hold, the rest
of us advanced into the morass with drawn swords and loaded horse-
pistols. I called to them to surrender, but they stood upon their
guard, determined on resistance; and just when we were involved to
the knees in the mire of the morass, they broke in upon us, pell-mell,
and for about two minutes the engagement was very sharp. There
was an old man struck me a terrible blow with a bludgeon, and was
just about to repeat it, when I brought him down with a shot from my
pistol. A young fellow then ran at me with his sword, and as I still
stuck in the moss, I could not ward the blow, so that he got a fair
stroke at my neck, meaning, without doubt, to cut off my head; and
he would have done it had his sword been sharp. As it was, he cut it
to the bone, and opened one of the jugular veins. I fell; but my men
firing a volley in their faces, at that moment they fled. It seems we
did the same, without loss of time; for I must now take my narrative
from the report of others, as I remember no more that passed. My
men bore me on their arms to our horses, and then mounted and
fled, trying all that they could to stanch the bleeding of my wound.
But perceiving a party coming down a hill, as with the intent of
cutting off their retreat, and losing all hopes of saving my life, they
carried me into a cottage in a wild lonely retreat, commended me to
the care of the inmates; and after telling them my name, and in what
manner I had received my death wound, they thought proper to
provide for their own safety, and so escaped.
“The only inmates of that lonely house, at least at that present
time, were a lover and his mistress, but intercommuned Whigs; and
when my men left me on the floor, the blood, which they had
hitherto restrained in part, burst out afresh and deluged the floor.
The young man said it was best to put me out of my pain, but the girl
wept and prayed him rather to render me some assistance. ‘Oh,
Johnny, man, how can you speak that gate?’ cried she. ‘Suppose he
be our mortal enemy, he is aye ane o’ God’s creatures, an’ has a soul
to be saved as well as either you or me; and a soldier is obliged to do
as he is bidden. Now Johnny, ye ken ye were learned to be a doctor o’
physic; wad ye no rather try to stop the bleeding, and save the young
officer’s life, as either kill him, or let him bleed to death on our floor,
when the blame o’ the murder might fa’ on us!’
“‘Now, the blessing of heaven light on your head, my dear Sally!’
said the lover, ‘for you have spoken the very sentiments of my heart;
and, since it is your desire, though we should both rue it, I here vow
to you that I will not only endeavour to save his life, but I will defend
it against our own party to the last drop of my blood.’
“He then began, and, in spite of my feeble struggles, who knew not
either what I was doing or suffering, sewed up the hideous gash in
my throat and neck, tying every stitch by itself; and the house not
being able to produce a pair of scissors, it seems that he cut off all the
odds and ends of the stitching with a large sharp gully knife, and it
was likely to have been during the operation that this gentleman
chanced to look in at the window. He then bathed the wound for an
hour with cloths dipped in cold water, dressed it with plaster of
wood-betony, and put me to bed, expressing to his sweetheart the
most vivid hopes of my recovery.
“These operations were scarcely finished when the maid’s two
brothers came home from their hiding-place; and it seems they
would have been there much sooner had not this gentleman given
them chase in the contrary direction. They, seeing the floor all
covered with blood, inquired the cause with wild trepidation of
manner. Their sister was the first to inform them of what had
happened, on which both the young men gripped to their weapons,
and the eldest, Samuel, cried out with the vehemence of a maniac,
‘Blessed be the righteous avenger of blood! Hoo! Is it then true that
the Lord hath delivered our greatest enemy into our hands!’ ‘Hold,
hold, dearest brother!’ cried the maid, spreading out her arms before
him. ‘Would you kill a helpless young man, lying in a state of
insensibility! What! although the Almighty hath put his life in your
hand, will He not require the blood of you, shed in such a base and
cowardly way?’
“‘Hold your peace, foolish girl,’ cried he, in the same furious strain.
‘I tell you, if he had a thousand lives I would sacrifice them all this
moment! Wo be to this old rusty and fizenless sword that did not
sever his head from his body when I had a fair chance in the open
field! Nevertheless he shall die; for you do not yet know that he hath,
within these few hours, murdered our father, whose blood is yet
warm around him on the bleak height.’
“‘Oh! merciful heaven! killed our father!’ screamed the girl, and
flinging herself down on the resting-chair, she fainted away. The two
brothers regarded not, but with their bared weapons made towards
the closet, intent on my blood, and both vowing I should die if I had a
thousand lives. The stranger interfered, and thrust himself into the
closet door before them, swearing that, before they committed so
cowardly a murder they should first make their way through his
body.
“Samuel retreated one step to have full sway for his weapon, and
the fury depicted on his countenance proved his determination. But
in a moment his gallant opponent closed with him, and holding up
his wrist with his left hand, he with the right bestowed on him a blow
with such energy that he fell flat on the floor among the soldier’s
blood. The youngest then ran on their antagonist with his sword and
wounded him, but the next moment he was lying beside his brother.
As soon as her brothers came fairly to their senses, the young woman
and her lover began and expostulated with them, at great length, on
the impropriety and unmanliness of the attempt, until they became
all of one mind, and the two brothers agreed to join in the defence of
the wounded gentleman, from all of their own party, until he was
rescued by his friends, which they did. But it was the maid’s simple
eloquence that finally prevailed with the fierce Covenanters.
“When my brothers came at last, with a number of my men, and
took me away, the only thing I remember seeing in the house was the
corpse of the old man whom I had shot, and the beautiful girl
standing weeping over the body; and certainly my heart smote me in
such a manner that I would not experience the same feeling again for
the highest of this world’s benefits. That comely young maiden, and
her brave intrepid lover, it would be the utmost ingratitude in me, or
in any of my family, ever to forget; for it is scarcely possible that a
man can ever be again in the same circumstances as I was, having
been preserved from death in the house of the man whom my hand
had just deprived of life.”
Just as he ended, the sick nurse peeped in, which she had done
several times before, and said, “Will your honour soon be
disengaged, d’ye think? for ye see because there’s a lass wanting till
speak till ye.”
“A lass, nurse? what lass can have any business with me? what is
she like?”
“Oo, ’deed, sir, the lass is weel enough for that part o’t, but she may
be nae better than she should be for a’ that; ye ken, I’se no answer for
that, for ye see because “like is an ill mark”; but she has been aften
up, speiring after ye, an’ gude troth she’s fairly in nettle-earnest now,
for she winna gang awa till she see your honour.”
The nurse being desired to show her in, a comely girl entered, with
a timid step, and seemed ready to faint with trepidation. She had a
mantle on, and a hood that covered much of her face. The privy
councillor spoke to her, desiring her to come forward and say her
errand, on which she said that “she only wanted a preevat word wi’
the captain, if he was that weel as to speak to ane,” He looked over
the bed, and desired her to say on, for that gentleman was his
brother, from whom he kept no secrets. After a hard struggle with
her diffidence, but, on the other hand, prompted by the urgency of
the case, she at last got out, “I’m unco glad to see you sae weel comed
round again, though I daresay ye’ll maybe no ken wha I am. But it
was me that nursed ye, an’ took care o’ ye in our house, when your
head was amaist cuttit off.”
There was not another word required to draw forth the most
ardent expressions of kindness from the two brothers, on which the
poor girl took courage, and, after several showers of tears, she said,
with many bitter sobs, “There’s a poor lad wha, in my humble
opinion, saved your life; an’ wha is just gaun to be hanged the day
after the morn. I wad unco fain beg your honour’s interest to get his
life spared.”
“Say not another word, my dear good girl,” said the councillor; “for
though I hardly know how I can intercede for a rebel who has taken
up arms against the government, yet, for your sake and his, my best
interest shall be exerted.”
“Oh, ye maun just say, sir, that the poor Whigs were driven to
desperation, and that this young man was misled by others in the
fervour and enthusiasm of youth. What else can ye say? But ye’re
good—oh, ye’re very good! and on my knees I beg that ye winna lose
ony time, for indeed there is nae time to lose!”
The councillor lifted her kindly by both hands, and desired her to
stay with his brother’s nurse till his return, on which he went away to
the president, and in half-an-hour returned with a respite for the
convict, John Lindsay, for three days, which he gave to the girl, along
with an order for her admittance to the prisoner. She thanked him
with the tears in her eyes, but added, “Oh, sir, will he and I then be
obliged to part for ever at the end of three days?”
“Keep up your heart, and encourage your lover,” said he, “and
meet me here again, on Thursday, at this same hour, for, till the
council meet, nothing further than this can be obtained.”
It may well be conceived how much the poor forlorn prisoner was
astonished when his own beloved Sally entered to him with a
reprieve in her hand, and how much his whole soul dilated when, on
the Thursday following, she presented him with a free pardon. They
were afterwards married, when the Gilmours took them under their
protection. Lindsay became a highly qualified surgeon, and the
descendants of this intrepid youth occupy respectable situations in
Edinburgh to the present day.
GRAYSTEEL:
A TRADITIONARY STORY OF CAITHNESS.
In a beautiful valley in the highlands of Caithness, lies embosomed

a small mountain tarn, called the Loch of Ranag. The hill of
Bencheildt, which ascends abruptly from the water’s edge, protects it
on the north. On the south it is overlooked by a chain of lofty
mountains, individually named Scarabine, Morven, and the Pap,
which form a natural barrier betwixt Sutherland and Caithness.
Morven, the highest in the range, is nearly two thousand feet above
the level of the sea, and turns up conspicuously over the
neighbouring summits, like a huge pyramid. The extensive wild lying
between this magnificent chain of hills and Ranag, is clothed in the
autumnal season with rich purple heather; and here the plover and
the grouse, the denizens of the solitary waste, live unmolested,
except by the murderous gun of the sportsman. Near the north edge
of the loch to which we have just alluded, there is a small island, on
which may be still seen the ruins of an old keep or castle. The last
proprietor of this fortalice is said to have been a noted freebooter of
the name of Graysteel, who kept the whole county in alarm by his
predatory incursions from the Ord to Duncansbay Head, and, like
Rob Roy and others of the same stamp, rigorously exacted “black
mail,” or protection money. Tradition also reports, that, besides
being possessed of great bodily strength, he was an expert
swordsman, and a person of such a jealous and tyrannical
disposition, that none durst venture to hunt or shoot on his grounds,
without being challenged to single combat; and it may be added, that
none whom he encountered trespassing in this way ever escaped
alive out of his hands. It happened that one of the family of Rollo,
while pursuing his sport in the direction, one day unfortunately
encroached on the sacred property of the robber. Being informed by
some of his retainers that a stranger was hunting on the west side of
the lake, Graysteel immediately sallied forth, and, running up
towards the sportsman with menacing looks and gestures, gave him
the accustomed challenge. Rollo saw he had no alternative but to give
him combat, and being a high-spirited young man, he instantly drew
his sword; and, although he defended himself for some time with
great skill and courage, it is needless to say that he sank at last,
mortally wounded, under the more powerful arm of his antagonist.
The ruffian afterwards stripped the dead body of every thing that was
of any value, and then threw it into the loch.
The account of this melancholy occurrence, as soon as it reached
the family and relatives of the unfortunate youth, plunged them into
the deepest distress; but none did it inspire with more poignant
regret than the young laird of Durie, who was his bosom friend, and
had just been affianced to his sister, a very beautiful and interesting
girl of sixteen. The moment he heard of Rollo’s tragical death, he
determined to avenge it, although he knew he had little chance of
surviving a personal encounter with such a desperado as Graysteel.
Accordingly, having furnished himself with a good Highland
broadsword, and without communicating his intention to any one, he
set off for the residence of the freebooter. Nor was the route he had
to take, any more than the occasion of the journey, agreeable. A
trackless moor, of some miles in extent, lay between him and Ranag,
so very bleak and barren, that, in the words of the poet,
The solitary bee
Flew there on restless wing,
Seeking in vain one blossom where to fix.
He had not gone far, however, when he was overtaken by a severe

storm, which rendered it impossible for him to continue his journey.
The wind, which blew at times with irresistible fury, dashed the rain
in his face, mingled with hail, and howled like a maniac on the naked
moor. Clouds of turbid vapour, issuing, as it were, from a vast
furnace, hurried across the sky; and now and then the rolling of
thunder, while it prognosticated a continuance of the storm, added
not a little to its terrors. Driven by the wind, and battered by the rain,
our traveller began anxiously to look around him for some place of
shelter. At length, to his great joy, he espied, a few hundred yards
distant, a small solitary cottage, situated on the edge of the moor.
Thither he immediately directed his steps, and, on entering, found its
sole occupant to be a poor aged widow, who lived upon the
gratuitous bounty of the public. There was something, however, in
her appearance, though bent down with years and infirmities, that
spoke of better days. On a small stool beside her lay the Bible, which
she seemed to have been just reading. She welcomed in the stranger
with a look of much cheerfulness, and kindly offered him such
accommodation for the night as her scanty means could afford. As
the storm continued to rage with unabated violence, Durie gladly
accepted the proffered hospitality; and, in the meantime, the
venerable hostess did all in her power to make him comfortable, by
putting an additional peat or two on the hearth, and furnishing him
with something to eat. On examining the scanty furniture of the
apartment, which was now more distinctly seen by the light of a
blazing turf-fire, he observed, in one corner, a very uncommon-
looking sword, with the appearance of which he was not a little
struck. The hilt and blade were covered over with a variety of strange
characters and fantastic devices, plainly indicating that it was of
foreign manufacture, and belonged to a remote period. His curiosity
was powerfully excited; and on asking the old woman how she came
by such a magnificent weapon, she gave him the following particulars
regarding it. The sword, which had originally belonged to a noble
Saracen, was that of her deceased husband, who had been a
volunteer in the regiment of Highlanders that had gone over to
Holland under the command of Lord Reay. He had received it as a
present from a Polish Jew, whose life he had saved in a moment of
extreme danger. She, moreover, informed him that her husband,
while on his deathbed, had strictly enjoined her not to sell or dispose
of it in any way, but to preserve it as an heirloom of the family. On
getting this account of the sword, Durie told the woman who he was,
and the errand on which he was going, and begged of her to give him
the use of it for a single day. After much entreaty, she at last agreed
to give it, on the condition that it should be strictly returned.
The storm, which was short-lived in proportion to its violence,
gradually died away towards morning; and at the first peep of dawn
our hero, who burned with impatience to measure weapons with the
murderer of his friend, was up, and, with his enchanted sword firmly
girt on his side, pursuing his solitary route across the moors. His
spirits were now buoyant with hope; and he beheld with a feeling of
sympathy the universal gladness which, after the late convulsion of
its elements, was diffused over the face of nature. Already the “bird
of the wilderness” sang blithely overhead, whilst the beams of a
brilliant morning sun were beginning to dissipate the mists which lay
thick and heavy upon the hills. Our traveller was not long in reaching
the brow of Benchieldt; and scarcely had he descended half way
down the side fronting the castle, when he was met by Graysteel,
who, as usual, challenged him for intruding on his grounds, and
desired him to draw and defend himself. “Villain!” cried Durie,
unsheathing his weapon, which flashed in his hand like the
Scandinavian monarch’s celebrated elfin sword—“villain! you
wantonly slew my friend, and you shall this day atone for it with your
heart’s blood!”
The robber chief laughed scornfully at what he considered an
empty bravado, and immediately made a thrust at his opponent,
which the latter parried off with admirable dexterity. A desperate
struggle now ensued. Graysteel fought with the fury of an enraged
mastiff; but young Durie pressed upon him so hard with his never-
failing blade, that he was obliged to give way, and at last received a
mortal wound. After this, the hero of our tale went immediately
home, and, having raised a body of stout followers, proceeded back
to Ranag, took the castle, and nearly levelled it with the ground.
The denouement of our little story may be anticipated. After a
decent period for mourning had elapsed, Durie led his beautiful
bride to the hymeneal altar. Nor, in the midst of his happiness, did
he forget his good friend, the old woman of the moor. The sword,
which had proved so invaluable an auxiliary to him in the hour of
need, he not only returned to her, but he took her under his
protection, and kept her comfortable for the rest of her days—
Joy seized her withered veins, and one bright gleam
Of setting life shone on her evening hours.
—John O’Groat Journal, 1836.

THE BILLETED SOLDIER.
In the autumn of 1803, the Forfar and Kincardine militia,—then an

infantry regiment of about 1000 strong,—en route from the south of
Scotland to Aberdeen, along the coast road, happened to perform the
march between the towns of Montrose and Bervie on a Saturday. The
want of the required accommodation in Bervie for so many men
rendered it necessary that a considerable portion should be billeted
in the adjoining villages of Johnshaven and Gourdon, and on farmers
and others on the line of march. In carrying out this arrangement, it
so happened that one private soldier was billeted on a farmer or
crofter of the name of Lyall, on the estate of East Mathers, situated
about a mile north-west of the village of Johnshaven. David Lyall,
gudeman of Gateside, was a douce, respectable individual, a worthy
member, if not an elder, of the secession church, Johnshaven. His
wife, Mrs Lyall, possessed many of the good qualities of her worthy
husband, whom she highly venerated, and pithily described as being
“as gude a man as ever lay at a woman’s side.” Mrs Lyall was a rigid
seceder, a strict Sabbatarian, stern and rigorous in everything
relating to the kirk and kirk affairs, deeply learned in polemical
disquisitions, had a wondrous “gift of gab,” and by no means allowed
the talent to lie idle in a napkin.
The soldier produced his billet, was kindly received, treated to the
best as regarded bed and board, was communicative, and entered
into all the news of the day with the worthy couple. Everything ran
smoothly on the evening of Saturday, and an agreeable intimacy
seemed to be established in the family; but the horror of Mrs Lyall
may be conceived, when, on looking out in the morning rather early,
she saw the soldier stripped to the shirt, switching, brushing, and
scrubbing his clothes on an eminence in front of the house.
“Get up, David Lyall,” she said, “get up; it ill sets you to be lying
there snoring, an’ that graceless pagan brackin’ the Lord’s day wi’ a’
his might, at oor door.”
David looked up, and quietly composing himself again, said, “The
articles of war, gudewife, the articles of war; puir chiel, he canna help
himsel—he maun do duty Sunday as well as Saturday.”
The soldier, after cleaning his clothes and taking a stroll in the
romantic dell of Denfenella adjoining, returned in time to breakfast,
which was a silent meal. With Mrs Lyall there was only “mony a sad
and sour look,” and on the table being cleared, she placed on it, or
rather thrust, the “big ha’ Bible” immediately in front of the soldier.
“Weel, mistress,” said the soldier, “what book is this?”
“That’s a beuk, lad,” said the gudewife, “that I muckle doubt that
you and the like o’ ye ken unco little about.”
“Perhaps,” was the reply; “we shall see.”
On opening the book the soldier said, “I have seen such a book
before.”
“Gin ye’ve seen sic a book before,” said Mrs Lyall, “let’s hear gin ye
can read ony.”
“I don’t mind though I do,” said the soldier, and taking the Bible
he read a chapter that had been marked by Mrs Lyall as one
condemnatory of his seeming disregard of the Sabbath. The reading
of the soldier was perfect.
“There, lad,” said David Lyall, “ye read like a minister.”
“An’ far better than mony ane o’ them,” said the mistress; “but gifts
are no graces,” she continued; “it’s nae the readin’ nor the hearin’
that maks a gude man—na, na, it’s the right and proper application—
the practice, that’s the real thing.”
David saw that “the mistress was aboot to mount her favourite
hobbyhorse,” and cut her lecture short by remarking that “it was
time to make ready for the kirk.”
“Aye, ye’ll gae to the kirk,” said Mrs Lyall, “an’ tak the sodger wi’
ye; and see that ye fesh the sermon hame atween ye, as I am no gaun
mysel the day.”
The soldier acquiesced, and on their way to church Mr Lyall
remarked, among other things, that “the gudewife was, if anything,

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Aviation Security Privacy Data

Protection and Other Human Rights

Online Banking Security Measures and Data Protection

Privacy and Data Protection Seals Rowena Rodrigues

Data Protection on the Move Current Developments in ICT

Data Protection and Privacy In visibilities and

Designing for Privacy and its Legal Framework Data

The Privacy, Data Protection And Cybersecurity Law

Security Privacy and Forensics Issues in Big Data

Large Scale Land Investments in Least Developed

Olga Mironenko Enerstvedt

Issues in Privacy and Data Protection

More information about this series at http://www.springer.com/series/8808

Aviation Security, Privacy,

ISSN 2352-1902 ISSN 2352-1910 (electronic)

Library of Congress Control Number: 2017941081

© Springer International Publishing AG 2017

Printed on acid-free paper

This Springer imprint is published by Springer Nature

Langhus, Norway Olga Mironenko Enerstvedt

Part I General Part

4 Civil Aviation Security............................................................................... 97

Part II Special Part

6.3.3 Transmission X-Ray.............................................................. 230

7.4.4 PNR....................................................................................... 347

Part III Conclusion

Selected Sources and Materials...................................................................... 431

European Court of Human Rights

A. and Others v. the United Kingdom, No. 3455/05, 19 Feb 2009.

European Court of Justice

Case C–70/10, Scarlet Extended SA v. Société belge des auteurs, compositeurs et

Arizona v. Evans, 514 U.S. 1 (1995), 1 March 1995.

Fig. 1.1 Privacy and data protection: overlap������������������������������������������������ 4

1.1 Background and Subject Matter

© Springer International Publishing AG 2017 1

Fig. 1.1 Privacy and data

security to the passengers – and distinguishing between different types of privacy

This is easy to understand. It is obvious that security, which is vital to survival,

versus privacy” will be used as synonymous to “aviation security versus privacy,

1.2 Aims of the Research

1.3 Approach of the Research

Civil aviation can be characterized by strong international character and increased

By James Hogg, the “Ettrick Shepherd.”

In a beautiful valley in the highlands of Caithness, lies embosomed

He had not gone far, however, when he was overtaken by a severe

—John O’Groat Journal, 1836.

In the autumn of 1803, the Forfar and Kincardine militia,—then an

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Langhus, Norway Olga Mironenko Enerstvedt

4 Civil Aviation Security............................................................................... 97

6.3.3 Transmission X-Ray.............................................................. 230

7.4.4 PNR....................................................................................... 347

European Court of Human Rights

European Court of Justice

Fig. 1.1 Privacy and data protection: overlap�� 4

1.1 Background and Subject Matter

1.2 Aims of the Research

1.3 Approach of the Research