Schneier and Friends on Fixing Airport Security
Security guru Bruce Schneier comes down on the strictly pragmatic side in this essay called “Fixing Airport Security.” Because of terrorism fears, he says, TSA checkpoints are “here to stay.” The rules should be made more transparent. He also argues for an amendment to some constitutional doctrines:
The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that. Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.
The comments turn up an important recent Fourth Amendment decision circumscribing TSA searches. In a case called United States v. Fofana, the district court for the southern district of Ohio held that a search of passenger bags going beyond what was necessary to detect articles dangerous to air transportation violated the Fourth Amendment. “[T]he need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable,” wrote the court.
Application of this rule throughout the country would not end the “police-state-like checkpoint,” but at least rummaging of our things for non-air-travel-security would be restrained.
I prefer principle over pragmatism and would get rid of TSA.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
Is the REAL ID Revival Bill, “PASS ID,” a National ID?
With the move in the Senate to revive our moribund national ID law, the REAL ID Act, under the name “PASS ID,” it’s important to look at whether we’re still dealing with a national ID law. My assessment is that we are.
First, PASS ID is modeled directly on REAL ID. The structure and major provisions of the two bills are the same. Just like REAL ID, PASS ID sets national standards for identity cards and drivers’ licenses, withholding federal recognition if they are not met.
There is no precise definition of a national identification card or system, of course, but its elements are relatively easy to identify.
First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID and PASS ID have the exact same purpose – to create a nationally uniform identity system.
Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying or using a card, this presses it into the national ID category.
Neither REAL ID nor PASS ID directly mandate carrying a card. Doing so would be too obviously a national ID system, and politically unpalatable. But both seek to take advantage of the state driver licensing system, and they do that for a reason: Carrying a driver’s license is a practical requirement in most parts of the country, where the automobile reigns supreme as the mode of travel.
But maybe states would decline to participate. Nothing in the PASS ID Act directly requires states to implement the system, and they are entirely free to issue non-compliant licenses and ID cards. But this was also true of REAL ID – because of the constitutional rule that the federal government cannot commandeer the organs of state government. (The case is New York v. United States.)
What both REAL ID and PASS ID do is make it difficult for state residents to function without their nationally standardized ID. They both require the nationally standardized ID to enter federal facilities (perhaps fewer of them under PASS ID), to access nuclear power plants, and to board aircraft.
But the PASS ID bill has specific language saying that a person can’t be denied boarding because they don’t have a national ID. Isn’t that an improvement? It sounds like it, but that language simply restates the rules that exist under REAL ID.
It Is a Checkpoint, After All
The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.
The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Galling Security Ignorance
In a post on Saturday at NRO’s the Corner blog, former Bush speech writer Marc Theissen exhibits ignorance of basic security concepts too galling to let pass without comment.
Attempting to refute the idea that hijacking planes and flying them into buildings was “off the table” as a terrorist tactic after 9/11, Theissen says:
Really? Planes were off the table after 9/11? That would come as a surprise to every passenger in the past three years who had their liquids confiscated in an airport security line. Those security measures were instituted because in 2006 we foiled an al-Qaeda plot to hijack airplanes leaving London’s Heathrow airport and blow them up over the Atlantic (a plot our intelligence community says was just weeks from execution).
(First, put aside some issues – “what the government says about its security measures must be true” and both the immediacy and viability of the liquid bomb plot in London.)
The difference between “hijacking” and “bombing” shouldn’t need explaining. The former is taking over the controls of a thing, enabling an attacker to direct it into other things. The latter is exploding something in it or on it so as to render it inoperable.
Americans ritually donate their toothpaste to sanitation departments in the cities they visit not because a liquid bomb could enable the commandeering of a plane, but because the alleged liquid bomb could take a plane out of the sky.
The bombing of a plane is a serious concern, but not as serious or potentially damaging as the commandeering of an aircraft. And commandeering is essentially off the table. The hardening of cockpit doors, new procedures at the fronts of planes, and newfound resolve of passengers and crews against commandeering have reduced the likelihood of future commandeerings to near zero. That was what the plane going down in Pennsylvania was all about.
If it weren’t made in debate about such serious issues, Theissen’s error would be quite comical. In his jumbled version of events, the liquid bomb plotters were going to go to the trouble of capturing the controls of an airplane, then fly it around for a while, and finally blow it up over the Atlantic. It’s reminiscent of the Seinfeld episode in which Elaine attacks the theory that an elderly couple running a nearby cobbler shop had shut it down just to abscond with Jerry’s shoes:
ELAINE (amused): So. Mom and Pop’s plan was to move into the neighborhood…establish trust…for 48 years. And then, run off with Jerry’s sneakers.
KRAMER: Apparently.
ELAINE: Alright, that’s enough of this.
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