The article evaluates the proposal made by Heymann and Kayyem in their book Protectng Liberty in an Age of Terror to replace the practice of ethnic profiling by nationality-based profiling. It argues that in many circumstances this proposed alternative is not less offensive than ethnic profiling, especially when there is high correlation between ethnicity and nationality, and that at the same time it is does not prove to be an effective alternative in many other circumstances, especially in the context of immigration countries. Ultimately, the article proposes a shift in the focus of the debate on profiling from the controversy around the legitimate criteria for profiling to the context in which profiling is used and the kind of decisions to which it applies. The argument in this regard is that profiling is criticized also because it was used in the context of decisions with long-lasting effects on people’s lives - for the purpose of completely denying people an entrance to a country or for detaining them (in the Korematsu example). Therefore, rather than focusing only on the question of the criteria used for profiling, it would be better also to ensure that profiling is used only with regard to enforcement decisions that do not have long-lasting effects on the lives of innocent people.
Date of this Version
Daphne Barak-Erez, "Terrorism and Profiling: Shifting the Focus From Criteria to Effects" (July 2008). Tel Aviv University Law Faculty Papers. Working Paper 91.