With all the anger and confusion that erupted regarding the use of enhanced search techniques by America’s Transportation Security Administration (TSA) – backscatter X-rays and millimetre-wave imaging devices that were derided as “porn machines,” plus highly intrusive pat-downs – a lot of people started asking me if this sort of thing is legal or constitutional. That’s understandable, since I’m a law professor who writes a lot about technology. But the real question isn’t the law: it’s what kind of security do we want? And the answer will raise issues that are going to persist a lot longer than controversy over any particular airport technology or procedure.
The short answer to the “Is it legal?” question is almost certainly yes. Despite the impression you get from some critics of the legal system, the fact is that one’s right not to be searched – even, or perhaps I should say especially, when not suspected of a crime – is pretty limited. In the US, so-called administrative searches don’t require any suspicion of wrongdoing, and they are allowed as long as they are “reasonable” and follow approved procedures.
What’s reasonable? Well, to arrive at that conclusion, courts weigh the seriousness of the harm the searches are supposed to prevent and the likelihood that the searches will help against the degree of intrusion. (For more on these issues, see “Surviving the Digital Swarm,” elsewhere in this issue, and “You lookin’ at me?”, TechWatch, January 2011).
Courts have consistently upheld traditional airport security – involving metal detectors and follow-up pat-downs for weapons – as meeting this test. Weighing the potential deaths of hundreds or thousands, plus the destruction of millions of rand of property, against a few minutes of inconvenience, the courts have found every procedure they’ve looked at to be constitutional.
Despite the recent spike in outrage, the new methods of searching passengers aren’t entirely new. Writing in the Journal of Air Law and Commerce in 2008, analyst Julie Solomon argued that the highly revealing screening techniques probably meet the legal requirements for administrative searches. The full-body scan (so long as you believe the TSA’s privacy assurances) is not terribly intrusive, and the groper-style pat-downs are only a back-up. Solomon also thinks that the approach is more reliable than previous security measures.
On the other hand, commentator Sara Kornblatt suggested in the Loyola of Los Angeles Law Review that the searches should not be allowed, at least as a primary line of defence, because of privacy concerns – both at airports and everywhere else the machines may end up.
Who’s right? I’m inclined to think that the courts will uphold these searches, accepting authorities’ representations on privacy and also relying on the premise that those who are offended by the searches can simply forgo air travel. That’s what they’ve always done, and they show no sign of changing their approach now.
But what courts think isn’t what really matters here. What matters is what you think. Ultimately, the amount and kind of security we’ll have at airports, and everywhere else, is the amount and kind that we are willing to put up with. So instead of talking about what the courts will allow, it’s time to think about what citizens want. Today’s airport security is widely regarded as a waste of time – the TSA has never caught a terrorist, that we know of – and many regard it as what security expert Bruce Schneier calls security theatre: something aimed at giving the appearance of safety, as opposed to its reality.
Even if that’s a bit too harsh, or simplistic, it’s clear that American security policy is aimed at keeping objects off planes – and that this is just one possible approach. For the Israelis, on the other hand, the focus isn’t on things but on potentially dangerous people. Israeli Arabs often breeze through security, while Americans with odd stamps on their passports – as globe-hopping correspondent Michael Totten recently noted – face extensive questioning.
The Israelis focus on the person, looking for signs of nervousness, stories that don’t hang together and other evidence of nefarious intent. This makes sense. Ultimately, it’s people, not objects, who pose the danger.
With our legalistic culture, Americans don’t like the Israeli approach because we fear it may produce profiling. (Indeed, in the Israeli system, profiling isn’t a bug but a feature.) But we Americans might decide we want to be more like the Israelis anyway. Or we might decide that the old security approach was good enough. Or we might even decide to really think outside of the box and follow a TV sit-com bigot’s proposal from the first wave of airline hijackings back in the early ’70s: hand every passenger a gun as they board, so that any armed terrorists will be outnumbered.
Well, probably not. But, for too long, Americans have let the security folks make all the security decisions, even though those decisions require tradeoffs that affect us all. In November, when consternation over the new searches started to boil, economist Steven Horwitz argued forcefully that the stepped-up air security might cost more lives than it could save, by encouraging large numbers of Americans to drive when they otherwise would have flown. Given that air travel statistically is much safer than driving, he may have a point.
Remember, the only time a terrorist attack on a US airliner has been defeated (as opposed to fizzling when a shoe bomb failed to detonate) was on Flight 93. That’s when the passengers, armed with information from the other hijackings that day, took action themselves. Security has always been about everyone, not just the professionals, because where terrorism is concerned, everyone is on the front line. Anyone might be a first responder, by virtue of being where an attack happens. So it’s time for the public to weigh in and for authorities to listen.
To fight terrorism, we need a populace that is informed, motivated, vigilant and prepared, not one that is seething and feeling powerless and resentful. Yet our current security approach seems almost designed to produce the latter. Can that be right?
Terrorism is a widely dispersed threat, hard to pin down, constantly evolving in approach. It can only be countered by something else that’s widely dispersed, capable of quick change and dedicated to success. Luckily, we have something like that. It’s called democracy. Let’s use it.