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The latest additions to America’s Security Theater are the full body scan and the full body pat down. The scanners provide images of what is under the passenger’s clothes (including the passenger) and this is regarded by some as an invasion of privacy. Concerns have also been raised about the health effects of being exposed to the radiation emitted by the scanners. Passengers who would prefer to avoid this process can elect to have a TSA agent engage in a full body pat down. Not surprisingly, some people are concerned that this violates privacy rights.
While I am not a constitutional lawyer, this does seem to be a violation of the legal rights spelled out in the Fourth Amendment of the Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Of course, the legality of this is something that the lawyers will need to hash out, perhaps before the Supreme Court. As a philosophy, my main concern is with whether these practices are justified or not.
The stock argument for these practices is to contend that they are needed to keep people safe and are thus justified. The basic principle, that rights can be set aside because of security needs, is a sound one. But, of course, whether a specific application of the principle is warranted or not is another matter. Oversimplifying things quite a bit, a good case can be made for suspending (or violating) rights by showing that this suspension is required to avoid or prevent harms. To use the stock example, the right of free expression does not apply to yelling “fire” in a crowded theater. Likewise it could be argued that the right to privacy does not apply when the safety of passengers is at stake. Thus, while having strangers gazing at an image of your body or running their hands over your (once) private regions might seem like violations of your privacy, they are merely legitimate means of keeping you (and others) safe when you fly.
An obvious reply to this argument is that the appeal to security is not a magical trump card that justifies setting aside rights merely because an increase in safety has been claimed. Rather, the burden of proof rests upon the state to show that the suspension of rights is justified. In short, it needs to be shown that the security gained or the harm avoided justifies suspending or violating rights. While people will disagree on this matter, it seems reasonable to expect that the defense of the body scans and pat downs should be able to show that they are likely to deter harms significant and likely enough to warrant such clear intrusions into the privacy of passengers.
This does not seem to be the case. The threats that these methods would counter seem to be rather unlikely to occur and just as likely to be caught by other less intrusive security measures that predate the new procedures. As such, there seems to be a lack of adequate justification for these practices.
When pressed, defenders of the scanner and pat downs tend to point to the infamous underwear bomber. What if, they ask with righteous indignation, an under wear bomber got on board and blew up a plane? Surely, they contend, this possibility justifies these measures.
My first reply is that there was one attempt to use the underwear bomb and it failed. There were no other attempts even before the scanners and pat downs were implemented. As such, they provide a defense against an attack that was tried once and failed. It seems odd to expend so much money and violate privacy rights to defend against such an unlikely and feeble sort of attack.
It might be countered that the procedures are based on the principle that any potential threat must be countered, even if the counter is costly and violates rights. After all, one might say, we are at war.
I have two replies to that counter. First, this principle would justify even more blatant violations of privacy. To use an obvious example, a terrorist could swallow a condom containing explosives or insert one into his rectum (drugs are smuggled this way, so why not explosives?). Since these methods of attack are possible, this principle would justify forcing people to expel the contents of their stomachs and being subject to cavity searches before flying. However, I suspect even Homeland Security would (at least for now) balk at this procedures. However, while they are more invasive than the current procedures, they are justified by the same principle that allows privacy rights to be suspended for even minuscule gains in security. This, I think, shows that the scans and pat downs are also unjustified.
Second, consistency would seem to require that this principle be applied across the board. After all, it would be inconsistent to have such strict standards to protect people from underwear bombs while allowing other more likely dangers to remain unchecked. While terrorists do try to kill people, they do not kill people any more dead than anything else that kills people. So, for example, people should lose their right to drive cars. After all, thousands of people are killed each year by vehicles. As another example, air and train travel should be banned. After all, if people must be protected from the incredibly unlikely threat of underwear bombs, then they must surely be protected against the dangers of plane and train crashes. Naturally, environmental threats from companies must also be dealt with on the basis of this principle. For example, since the drilling of oil could result in an explosion and oil leak, all drilling must be stopped to keep people safe.
Of course, it would probably be argued that it would be absurd to ban planes, trains and automobiles. Sure, one might argue, people are killed in accidents and even homicides involving them. But such levels of danger are tolerable because of the right of people to travel and the economic necessity of such transport. Naturally, I would argue that if such dangers can be tolerated on this basis, then it would seem reasonable to tolerate the minuscule increase in risk that discontinuing scans and pat downs might create.
A likely reply to this is to restate that if a single underwear bomb blows up a plane or kills some people, then my argument would be shown to be horribly mistaken. However, this is on par with saying that if a single person is killed in a vehicular homicide, then the argument that cars should not be banned has been shown to be horribly mistaken. Or, to use another example, that if one oil well suffers an accident, then oil should be banned immediately. This seems absurd.
Thus, the full body scans and pat downs do not seem to be adequately justified and should be discontinued.
Mike,
You’re not knowledgeable several court cases that have decided on these issues a long time ago. You having shiny new object syndrome.
The court has already ruled that it is not practical that police get warrants in every case. (US vs. Martinez-Fuerte)
I’m quite knowledgeable in search and seizure law; I have a degree in law enforcemnt, graduated form a federal law enforement academy and was a cop for 8 yeras.
My own post forthcoming…. lest you creat any more “street lawyers” that are the bane of every cop’s existance.
http://soldiercitizen.wordpress.com/2010/11/17/tyners-argument-is-junk/
I know that just about everyone has heard about John Tyner, the 31 year old who threatened a TSA employee with arrest, should they touch his “junk”.
I have a degree in law enforcement, and am fairly well versed in law when it comes to searches and seizures. I’m not however, a lawyer, though I’ve faced them many times as a witness for the State of Maine in criminal proceedings. In my current professional field, I’m trained to resist the urge to let media coverage determine what’s important. It’s called a “shiny object”. That is, it glitters in the media spot light, so many assume that the story is in fact a new or important story. In reality, this situation has been addressed decades ago in courts of law. And no one really cared until this was caught on video, and the entertainment media began its usual drum beat, harkening the long awaited cataclysm so many on both the Right and the Left believe so imminent. Plus, people think it’s funny that Tyner used the word “junk” to denote his genitals. To me, he just displayed a severe lack of class.
Let’s look at this issue, first, from a legal perspective. Many are saying that this is a violation of peoples’ rights of privacy. I’m not sure if they mean that the courts have improperly allowed the 4th Amendment to be trampled on, or if TSA is ignoring the law. But they would only be correct in asserting the former, because the courts decided decades ago that people being searched at airports and at customs checkpoints in fact are submitting to consent searches. There are signs that tell people that they will be searched before they pass through the detectors and into the screening area. We need only look at the 4th Amendment to see that it places no more emphasis on a bag that a person carries than it does a person’s body:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
There is no special protection for the human body. The person, house, papers and effects are offered equal protection under the law. But it’s this pat down that has people up in arms. Yet, as long as there have been x-ray machines in airports, people have been placing their bags into the machines to be what? Searched. With X-rays.
Here’s a case decided in the 9th circuit court of appeals that explains why Tyner did not have the option after passing the the screening area, to simply say that he now did not want to be searched and didn’t want fly:
United States v. Aukai
“The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process.
Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [] [and] that it is confined in good faith to that purpose.” Davis, 482 F.2d at 913. We conclude that the airport screening search of Aukai satisfied these requirements.”
The law serves us, we do not serve the law. There is a real reason for not letting people just walk away when they see the will be searched. It’s the same thing at police traffic checkpoints. I was a cop for almost a decade, so I have a lot of familiarity with search and seizure law. If a car is seen to turn around and drive the other way as they approach a police checkpoint, the police have the right to pull the car over. This too, is a decades old rule, so let’s not get pulled into conspiratorial arguments about new justices being activists.
The case that upheld the constitutionality of sobriety check points
is US Supreme Court, Michigan Dept of State Police vs. Sitz, 496 US 444 (1990). Also checkpoints have been upheld in US vs. Martinez-Fuerte.
Tyner, argues (rudely) during his interaction with TSA officials, that it is not an assault, only because the government is doing it (the search). Assuming his argument is true, he negated his assertion that he would have the TSA person arrested for assault if they touched his “junk”. What he is really saying is that he doesn’t feel it’s fair that the government has more power than he does. Does anyone anywhere believe that the government doesn’t in fact wield more power than the individual? Would we want it any other way? This fact was settled hundreds of years ago when Thomas Hobbes penned Leviathan. Most people, even Tyner most probably, agree that the state must have more power than the individual. For the state’s primary responsibility is security of the people. In order to provide security, the state must have a monopoly on violence; that is, it must be able to bring more guns to a fight than any gang that decides to pick up arms. If it cannot do so, the state, and all the benefits that come with it, will not last long.
Some will argue that the measures go beyond the actual threat. They also point out that the recent underwear bomber failed in his attempt. Is this the kind of security we want? There are only three pieces needed to make a bomb: Explosives, a switch and a power source. If one can get their hands on the materials, the rest is fairly easy. Do we want to hedge our security on the fact that the last terrorist didn’t correctly hook a wire to the 9 volt battery? How many planes would have to go down before the entire industry shut down? Before people no longer wanted to fly? All because a 20 second pat down–on principle supposedly–is a bad idea. If a bomb were found tomorrow in one of those 20 second pat downs, would people still argue that the searches aren’t a good thing? Is anyone really that offended that a pat down is occurring or are they being pulled into the media hype? I say the latter. Hope is not a plan of action, and not changing the way we screen passengers as terrorists adapt is legalistic insanity. It’s also fraudulent, as many people arguing this type of search really just don’t like the War on Terror. They see it as a Bush legacy.
We need only ask ourselves this question to know whether the pat down procedure will be effective:
If you were a nihilistic terrorist with a bomb, would you target an airport terminal that patted people down, or one that did not?
Effective? Go one month without a screening process at any major airport in America and see what happens. I’d bet my next 16oz. Heineken that a plane would blow up. The hallmark of the modern terrorist is the soft target. Not military targets. Politicians, markets, mosques, political and civilian structures. The terrorist cannot fight our military and win on any regular basis. To give him any more opportunity than he already has to attack the best prize of all is sheer political stubbornness. Why is a plane such a great target? Because even if a suicide bomber were to wade into a crowd of people and detonate, he would not be able to kill as many people as he can with a plane. He’s kill a dozen people around him in the blast, and then hundreds more die when they hit the ground. Plus, airlines are a major part of the US and global economy. It’s a node, whose destruction would have a cascading effect. Almost any high school has a police officer assigned ot it. How many shootings are there at high schools? Should we not have a cop with a gun posted at high schools? If the cop makes $35,000 a year, and never has to pull the trigger, should we pull him out of the school because there’s been no violence? Are we that sure that security is only the result of people not trying or thinking about committing vioplent acts? Human nature cannot be changed. The only way to stop violence is to make it an unviable option.
Walk on to any military base, and you’re subject to search of all your bags and your person. You consented when you came through the gate. Just as people argue that military personnel consented to giving away some of their rights when they joined, so does the person who flies consent to a search when he or she flies. The signs tell him so beforehand.
What we cannot do is fall prey to hyperbolic rhetoric. “Beginning of the end” speak that’s so in vogue. As Ralph Peters said, it is America’s apparent duty to mind the brute children of failing cultures. It is not us that is failing. it is the culture that feels it necessary to place bombs amidst children and innocent civilians. We’re only trying to stop them from doing so.
In ending:
1) Patting people down is minimally intrusive (less than a minute).
2) It likely deters people from wearing bombs under their clothes and bringing them on to planes; we know Islamic terrorists place bombs under their clothes and do so over and over around the world.
3) The procedure is legal since the 1970s, as supported by case law .
As such, John Tyner, though famous for 15 minutes, is just plain wrong.
Excellent post. As far as the media attention is concerned, this story reminds me of the flight attendant who went down the emergency chute. Initial praise and sympathy, but as more story came out about him and as people had more time to consider the implications of his actions in regard to the damage he did and potentially could have done, people (media) just stopped talking about it.
Just have an explosives dog give everyone a quick sniff on the way through security.
Call it canine profiling.
Not a bad idea-it is noninvasive. Also, it would probably scare terrorists.
Guilty until proven innocent. Just like with DUI checkpoints.
Sounds like someone who’s had a DUI arrest…
And I wouldn’t have it any other way. Same goes for highway radar speed checks. Every driver coming down the highway is presumed (potentially) guilty until the radar gun proves them innocent.
Well, at least the situation is comedy gold.
As an admitted sexist, I found this howlingly funny. Absurd. But funny.
As a frequent flier. . .not so funny. . .