Profiling the would-be criminal: some issues

Dr. Ruwantissa Abeyratne

PROFILING: The war on terrorism has been called the decisive ideological struggle of the 21st century by US President George Bush. Consistent with this definition, some scholars even argue that the 4th global war is already on, between nations against terrorism. A war inevitably involves the use of tactics, military or otherwise, by one party at war against the other.

One of the tactics used against terrorism is profiling, which has been criticised by some as being stereotypical and discriminatory. However, profiling, when used for its intended purpose - i.e. to track down criminals, is not discrimination.

Profiling is a useful tool in the pursuit of the science of criminology. It is also a key instrument in a sociological context and therefore remains a sustained social science constructed through a contrived process of accumulation of single assumptions and propositions that flow to an eventual empirical conclusion.

However, profiling raises well reasoned latent fears when based on a racial platform. Jonathan Turley, Professor of Constitutional Law at George Washington University, in his testimony before a United States House of Representatives Committee on Airport Security regarding the use of racial profiling to identify potentially dangerous travellers observed that racial profiling is to the science of profiling as forced confessions are to the art of interrogation.

Like forced confessions, racial profiling achieves only the appearance of effective police work. Racial profiling uses the concept of profiling to shield or obscure a racist and unscientific bias against a particular class or group.

Stereotypes

It is the antithesis of profiling in that it elevates stereotypes over statistics in law enforcement.

Notwithstanding this telling analogy, and the apprehensions one might have against racial profiling, it would be imprudent to conclude that racial profiling is per se undesirable and unduly discriminatory, particularly in relation to profiling at airports which should essentially include some considerations of ethnic and national criteria.

A legitimate profiling process should be based on statistically established indicators of criminality which are identified through a contrived aggregation of reliable factors. The application of this criterion to profiling would immediately bring to bear the need to apply nationality and ethnic factors to profiles.

Although one might validly argue that racial profiling would entail considerable social and political costs for any nation, while at the same time establishing and entrenching criminal stereotypes in a society, such an argument would be destitute of effect when applied to airport security which integrally involves trans boundary travel of persons of disparate ethnic and national origins.

This by no means implies that racial profiling is a desirable practice. On the contrary, it is a demeaning experience to the person subjected to the process and a de facto travel restriction and barrier. It is also a drain on law enforcement resources that effectively preclude the use of proven and conventional uses of enforcement.

The sensitive conflict of interests between racial profiling per se, which at best is undesirable in a socio-political context, and airport profiling, raises interesting legal and practical distinctions between the two.

Among these the most important distinction is that airport profiling is very serious business that may concern lives of hundreds if not thousands in any given instance or event. Profiling should therefore be considered justifiable if at all its aspects are used in identifying potential criminals, an example being the screening of passengers at airports.

Nationality and ethnicity are valid baseline indicators of suspect travellers together with other indicators which may raise a 'flag' such as the type of ticket a passenger holds ( one way instead of return) and a passenger who travels without any luggage.

Difference

Racial profiling must not be assumptive or subjective. It must be used in an objective and non-discriminatory manner alongside random examinations of non-targeted passengers. Another critical distinction to be drawn between discriminatory and subjective racial profiling on the one hand and prudent profiling on the other is the blatant difference between racism and racial profiling.

The former is built upon the notion that there is a causal link between inherent physical traits and certain traits of personality, intellect or culture and, combined with it, the idea that some races are inherently superior to others. The latter is the use of statistics and scientific reasoning that identify a set of characteristics based on historical and empirical data.

This brings to bear the clear difference between 'hard profiling', which uses race as the only factor in assessing criminal suspiciousness and 'soft profiling' which uses race as just one factor among others in gauging criminal suspiciousness.

The role played by technology in modern day commercial transactions has affected a large number of activities pertaining to human interaction.

The emergence of the information superhighway and the concomitant evolution of automation have inevitably transformed the social and personal lifestyles and value systems of individuals, created unexpected business opportunities, reduced operating costs, accelerated transaction times, facilitated accessibility to communications, shortened distances, and removed bureaucratic formalities.

Progress notwithstanding, technology has bestowed on humanity its corollaries in the nature of automated mechanisms, devices, features, and procedures which intrude into personal lives of individuals. For instance, when a credit card is used, it is possible to track purchases, discovering numerous aspects about that particular individual, including, food inclination, leisure activities, and consumer credit behaviour.

In similar vein, computer records of an air carrier's reservation system may give out details of the passenger's travel preferences, inter alia, seat selection, destination fondness, ticket purchasing dossier, lodging keenness, temporary address and telephone contacts, attendance at theatres and sport activities, and whether the passenger travels alone or with someone else.

This scheme of things may well give the outward perception of surveillance attributable to computer devices monitoring individuals' most intimate activities and preferences, leading to the formation of a genuine 'traceable society'.

The main feature of this complex web of technological activity is that an enormous amount of personal information handled by such varied players from the public and private sector, may bring about concerns of possible 'data leaks' in the system, a risk that could have drastic legal consequences affecting an individual's rights to privacy.

At the international level, privacy was first recognised as a fundamental freedom in the Universal Declaration of Human Rights. Thereafter, several other human rights conventions followed the same trend, granting to individuals the fundamental right of privacy. The pre-eminent concern of these international instruments was to establish a necessary legal framework to protect the individual and his rights inherent to the enjoyment of a private life.

Privacy represents different things for different people. The concept per se has evolved throughout the history of mankind, from the original non-intrusion approach, which defended an individual's property and physical body against unwanted invasions and intrusions, then manifesting in whom to associate with, later enlarging its scope to include privacy as the individual's decision-making right, and culminating in the control over one's personal information.

Thus, the conceptual evolution of privacy is directly related to the technological advancement of each particular period in history.

A good profiling system must originate from a repository of research based on the characteristics of a person evoking criminal suspiciousness.

These characteristics must match the automated passenger information of airlines including the API technology generated prior to a flight. In addition, they must also be consistent with information on travel documents used by passengers.

One way of accomplishing this objective is to use the profiles of known or suspected criminals and terrorist categories. Additionally, a diligent and energetic State instrumentality must be established for the purpose of constantly monitoring and ensuring that airport profiling does not discriminate between categories of persons on a subjective basis and that a balanced system of compliance examination is in place.

In the ultimate analysis, the socio-legal relevance of non discrimination in the profiling process lies in the importance of respecting and safeguarding human rights and the rights of certain identified ethnic groups which may form a minority in a particular jurisdiction.

Due recognition and active protection of a minority's rights pertaining to racial, cultural and religious issues is the first characteristic of a prudent and balanced profiling process. This feature guarantees freedom from discrimination based on race, language, nationality and national origin or religion.

Rights

Western democracies, particularly after World War II and the Nuremberg trials which ensured punishment for those responsible for the organised murder of thousands of innocent persons by the commission of atrocities during the war, have been particularly sensitive to the need to ensure human rights.

This has led to a gradual evolution where focus on collective rights of national minorities have replaced earlier emphasis on individual rights.

The protection of human rights is the most significant and important task for a modern State, particularly since multi ethnic States are the norm in today's world. Globalization and increased migration across borders is gradually putting an end to the concept of the nation State, although resistance to reality can still be seen in instances where majority or dominant cultures impose their identity and interests on groups with whom they share a territory.

In such instances, minorities frequently intensify their efforts to preserve and protect their identity, in order to avoid marginalisation. Polarisation between the opposite forces of assimilation on the one hand and protection of minority identity on the other inevitably causes increased intolerance and eventual armed ethnic conflict. In such a scenario, the first duty of governance is to ensure that the rights of a minority society are protected.

Racial profiling is an issue related to minority rights and must not be ignored.

In essence, racial profiling is intersectional in nature and may consist of multiple grounds of institutionalised discrimination such as nationality, race, age, gender, socio-economic status, disability, health status, descent, language, class, culture and religion.

At the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa from August 31 to September 7 2001, the Conference, referring to the International Convention on the Elimination of All Forms of Racial Discrimination, urged States to implement or strengthen legislation and administrative measures prohibiting racial discrimination and related intolerance.

In its declaration, the Conference urged States "to design, implement and enforce effective measures to eliminate the phenomenon popularly known as 'racial profiling' and comprising the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity."

The intrinsic value to a society and perhaps to the whole world, of eschewing racial and national discrimination is portrayed in the aftermath of the Holocaust - the defining event of this century. Human Rights in our lifetime cannot be comprehended without touching our own conceptual proximity to this and other recent events which marred the dignity of human civilization.

The result of the Holocaust was the adoption by the United Nations of the Universal Declaration of Human Rights which has now stood its ground over the past 50 plus years.

The Universal Declaration, which has flourished both internationally and nationally, has been supplemented by the International Covenant on Economic, Social and Cultural Rights adopted in 1966. Both the Universal Declaration and the International Covenant have committees established to oversee their implementation.

The Universal Declaration of Human Rights is composed of 30 articles which asserts a human being's just rights to civilized and dignified living. In this context, we are traversing a thin line between genuine, acceptable processes of profiling possible criminal elements and the danger of racial and national discrimination.