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.