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A nude awakening — TSA and privacy

Evan DeFilippis/The Daily
Monday, December 6, 2010

Editor’s note: This column is in response to Kate McPherson’s Tuesday column, “Airport screenings could be worse.”

Daily columnist Kate McPherson wrote a column on Tuesday in defense of the Transportation Security Administration’s newest screening procedures, arguing that because security protocol in other countries is far more invasive than that implemented in the U.S., the American public should be grateful to have such ‘minor’ abbreviations of liberty. In my experience with debate I have found that any position whose primary justification is “it could be worse” is almost certainly wrong.

My colleague argues that aggressive pat-downs and full-body scans are crucial to our security. This argument fails in multiple respects — it makes the false assumption that these new procedures are actually effective in mitigating the risk of terrorism, which they aren’t; it fallaciously presumes that one’s security risk is higher in an airport than it is anywhere else, which it isn’t; and it prescribes a remedy that is far worse than the disease. Benjamin Franklin had a pithy rebuttal: “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” Here’s mine:

There is little evidence to suggest that the newest TSA procedures will be effective at reducing terrorism. Indeed, security expert Bruce Schneier stated unequivocally that nothing that can conceivably be done to stop a well-financed al-Qaeda-like plot from materializing — once terrorist plotters have made it to the airport, it’s already too late to stop them. Against “lone-wolf” amateur forms of terrorism, upper-level intelligence agencies and pre-Sept. 11 technologies has consistently proven effective at neutralizing the threat.

Nevertheless, the TSA continues to advocate a model of security based upon overreaction. Ineffectual peripheral threats relating to liquid explosives, shoe bombs or printer cartridges coincide with rapid changes to the terrorist alert level (as if the risk of terrorism increases after a failed plot!) and reactionary modifications to security protocol, resulting in the loss of millions in governmental revenue, inconvenience for passengers and the abatement of fundamental liberty.

The fundamental problem is that terrorism is innovative while TSA policy is reactive. The TSA modifies its protocol on the basis of terrorist plots that have already happened, while an intelligent terrorist knows not to duplicate the failed efforts of past terrorists.

Security expert, Bruce Schneier, noted that international terrorists have already started smuggling weapons through body cavities, which can’t be detected through either x-rays or pat-downs, instantly rendering both our new procedures useless.

The other problem is that even if technology is capable, under experimental conditions, of identifying dangerous materials, there’s still a deeply flawed human element that undermines the effectiveness of these procedures.

TSA employees must independently evaluate hundreds of images a day, of people with different body shapes, garments, hairstyles, and physical eccentricities, on a government-issued chair, displayed on a 17-inch monitor, and without much monetary incentive, and we expect them, in less than five minutes, to competently delineate good people from bad people. It’s nonsense to believe that this technology will save us from terrorism, yet we’re sacrificing privacy and our dignity in the name of a goal that isn’t achievable: perfect safety.

The odds of dying on an airplane as a result of a terrorist hijacking are less than 1 in 25 million — which, for all intents and purposes, is effectively zero — according to Paul Campos, a law professor at the University of Colorado at Boulder. By comparison, the odds of dying in a normal airplane crash, according to the OAG Aviation Database, are 1 in 9.2 million. This means that, on average, pilots are responsible for more deaths than terrorists.

In the same vein, the average American is 87 times more likely to drown than die by a terrorist attack; 50 times more likely to die by lightening; and 8 times more likely to die by a police officer, according to the National Safety Council’s 2004 estimates. I can go on, the point is this: the risk of a terrorist attack is so infinitesimal and its impact so relatively insignificant that it doesn’t make rational sense to accept the suspension of liberty for the sake of avoiding a statistical anomaly.

The $338 million spent so far on body scanners by the TSA could have instantly had larger social benefit had it been invested in almost anything else.

It’s as if our collective memory has been reconstructed around the fulcrum of Sept. 11, such that terrorism has been newly defined by the events surrounding that day, and not by the myriad other ways in which terrorism has historically been executed. If we can justify the imposition of invasive force and the volitional sacrifice of rights based upon a single historical aberration, where do we draw the line the next time a terrorist attack happens?

Would it be appropriate for the TSA to populate public parks, restaurants, casinos, zoos and public transit, all in the name of security? After all, in 2006 the Dpartment of Homeland Security listed those places as “top terrorist targets.” And if we were to use the same logic forwarded by TSA-proponents, we would say that because people aren’t required to go to these places, it’s okay to coerce them into abridging their rights. It’s their choice, after all. Yet, we obviously wouldn’t accept such a system if it were implemented, so why do we accept the same humiliating system at airports?

The inconsistency of our outrage is instructive — it shows that our perceptions of safety and security are not reflective of reality but are instead dictated to us externally by demagogic politicians who have a vested interest in our fear. We are a passive audience trapped in a theatre of the absurd — apparently too absorbed in brilliantly orchestrated drama to realize it’s all just a play.

We should be concerned with the 12.7 percent of Americans who live below the poverty line, or the 7.9 million people who die worldwide because of cancer, or the 9,000 innocent Afghani civilians we’ve killed fighting an unjustified war, but we are instead enraptured by xenophobic obscurantism that perverts our sense of risk, enables the abrogation of liberty and leaves us vulnerable to a self-defeating national policy that plays into the hands of terrorists.

Security for the sake of security is pointless — I can assure you that the risk of terrorism would be neutralized if airline passengers were required to board planes naked but such a requirement would be so intrusive and humiliating that security would have lost its meaningfulness. There’s no purpose in security if it debases the very life it intends to protect, yet the forced choice one has to make between privacy and travel does just that. If you want to travel, you have a “choice” between low-tech fondling or high-tech pornography; the choice, therefore, to relegate your fundamental rights in exchange for a plane ticket. Not only does this paradigm presume that one’s right to privacy is variable — contingent on the government’s discretion and only respected in places that the government doesn’t care to look — but it also ignores that the fundamental right to travel has consistently been upheld by the Supreme Court.

Consider a quote from United States v. Guest (1966): “In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Another quote from Shapiro v Thompson (1969): “‘The constitutional right to travel from one State to another . . . has been firmly established and repeatedly recognized.’ … This constitutional right, which, of course, includes the right of ‘entering and abiding in any State in the Union,’ is not a mere conditional liberty subject to regulation and control under conventional due process or equal protection standards. ‘[T]he right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment.’ As we made clear in Guest, it is a right broadly assertable against private interference as well as governmental action. Like the right of association, NAACP v. Alabama, 357 U.S. 449, it is a virtually unconditional personal right, guaranteed by the Constitution to us all.”

If we have both the right to privacy and the right to travel, then TSA’s newest procedures cannot conceivably be considered legal. The TSA’s regulations blatantly compromise the former at the expense of the latter, and as time goes on we will soon forget what it meant to have those rights.

Every time we convince ourselves that things “aren’t that bad” and thus not in need of change, we are training ourselves to be complacent in the face of injustice, and we are weakening our capacity to challenge those forces most in need of change. It could always be worse, but that doesn’t mean we should surrender the opportunity to make it better.

— Evan DeFilippis

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