Strip-Search Machines as the Downfall of the ‘War on Terror’
Here’s Wall Street Journal editorial page editor Paul Gigot on NBC’s Meet the Press:
I think the danger here is that the public begins to revolt against these kinds of security procedures. And then you risk losing public support, not just for airport screenings, but for the whole war on terror and the whole national security regime post-9/11.
Exactly.
The “danger” Gigot is talking about is that the government might lose control of counterterrorism policy, ceding that control back to a frustrated and increasingly restless American populace. The “War on Terror” theme supports a host of policies—most acutely, these airport searches—that are at best unexplained by the goverrnment and likely not merited by actual security conditions. As I noted in an earlier post, in seven billion domestic passenger trips over the last decade, there have been zero bombings. Yet we are to be searched like prison inmates at the whim of the TSA. That simply doesn’t comport with common sense.
(Top government officials and people I know and respect sometimes say things like, “If you knew what I’d learned in secret briefings . . . .” I don’t accept these assertions. Just like in a courtroom, facts not put into evidence are not facts in the public debate either. “War on Terror” secrecy policies are a failing pillar of post-9/11 security policy.)
There is not real danger in shifting from today’s overreactive, fear-based security regime to one that exploits terrorism’s many weaknesses to secure the country cost-effectively, confidently, and consistently with Americans’ liberty and prosperity. The Cato book, Terrorizing Ourselves: Why U.S. Counterterrorism Policy is Failing and How to Fix It, contains the thinking that undergirds a new, better approach.
Where to Report and Discuss TSA Abuses
With the TSA sticking by its policy of requiring select air travelers to submit to visual observation or physical touching of their private areas before they can fly, a number of groups are collecting reports and facilitating public discussion.
The American Civil Liberties Union has put up a page on which to report TSA screening abuses.
The Electronic Privacy Information Center has a “Body Scanner Incident Report” page.
And the U.S. Travel Association has a site called “Your Travel Voice,” and a related Facebook page where people can share their stories and air their views.
The activism site StopDigitalStripSearches.org also has a Facebook page.
The TSA has a complaint form you can fill out, of course.
When you post to a Facebook page, obviously you’ll be sharing your story publicly. If you communicate with any of the organizations, you might specify whether you consent to sharing your name and your story with the media. Doing so can facilitate getting more stories and more public discussion of the government’s policies.
A “National Opt-Out Day” has been called for November 24th.
I’ve written about the strip/grope policy in terms of risk management, and suggested that acceptance of some small risk is probably superior to strip/grope or a budding national ID system. In his post ”Body Scanner Blues,” David Rittgers recaps and expands on his New York Post editorial.
The Security Logic Clarifies the Question
A new post on the TSA blog gets the logic behind the strip/grope combination correct.
[I]f you’re selected for AIT and choose to opt-out, we still need to check you for non-metallic threats. That’s why a pat-down is required. If you refuse both, you can’t fly.
Any alternative allows someone concealing something to decline the strip-search machine, decline the intimate pat-down, and leave the airport, returning another day in hopes of not being selected for the strip-search machine. The TSA reserves the right to fine you $11,000 for declining these searches.
So the question is joined: Should the TSA be able to condition air travel on you permitting someone to look at or touch your genitals?
I’ve argued that the strip/grope is security excess not validated by risk management. It’s akin to a regulation that fails the “arbitrary and capricious” standard in adminstrative law. But the TSA is not so constrained.
‘Strip-or-Grope’ vs. Risk Management
In a humbly-toned USA Today opinion piece yesterday, Secretary of Homeland Security Janet Napolitano asked for the public’s cooperation with airline security measures the Transportation Security Administration has recently implemented. The TSA has come up with an invasive pairing: ”Advanced Imaging Technology,” also known as “strip-search machines” and, for those refusing, “enhanced” pat-downs which explore areas of the body typically reserved for one’s spouse or doctor.
Anecdotal reports suggest that the machines are being used to ogle women, and we are seeing disturbing images and videos of children being handled by strangers online. The public is increasingly agitated by the TSA’s latest amendment to the air travel ordeal, and a “National Opt-Out Day” is slated for next Wednesday, the biggest travel day of the year.
Twice, Secretary Napolitano notes that these measures are “risk-based” or “driven by . . . risk.” But has the Department of Homeland Security conducted the necessary risk management studies to validate these programs? A March 2010 Government Accountability Office report says:
[I]t remains unclear whether the AIT would have detected the weapon used in the December 2009 incident based on the preliminary information GAO has received. . . . In October 2009, GAO also recommended that TSA complete cost-benefit analyses for new passenger screening technologies. While TSA conducted a life-cycle cost estimate and an alternatives analysis for the AIT, it reported that it has not conducted a cost-benefit analysis of the original deployment strategy or the revised AIT deployment strategy, which proposes a more than twofold increase in the number of machines to be procured.
I’ve seen no documentation that the strip-search machines, the invasive pat-downs, or their combination have been subjected to any thorough risk analysis. The DHS has mouthed risk terminology for years now, but evidence is scant that it has ever subjected itself to such rigor. Read the rest of this post »
The ‘Communitarian’ Defense of Strip-Search Machines
What’s most interesting about Amitai Etzioni’s defense of airport strip-search machines is how rootless his approach to privacy problems is.
[O]ur public-policy decisions must balance two core values: Our commitment to individual rights and our commitment to the common good. Neither is a priori privileged. Thus, when threatened by the lethal SARS virus, we demanded that contagious people stay home—even though this limited their freedom to assemble and travel—because the contribution to the common good was high and the intrusion limited. Yet we banned the trading of medical records because these trades constituted a severe intrusion, but had no socially redeeming merit.
I disagree with this formulation, and I don’t know that he has accurately depicted the law on ”trade” in medical records or the merits on that question. But more important here: these value-balancing precedents don’t guide his analysis of strip-search machines. Rather, he just concludes in favor of them using his own assessment of “the common good.”
At least Etzioni is consistent. I wrote in my 2005 Privacilla.org review of his book, The Limits of Privacy: “[T]he book amounts to little more than bare assertion—one man’s argument—that privacy is not as important as other things. The argument appears unrooted in anything more than Etzioni’s opinions. ”
We have a long tradition of protecting individual rights. And we have processes for discovering the common good, such as markets, in which individual preferences agglomerate to sort it out for us. On the rare occassions when markets fail, political legislation and regulation may be a necessary substitute for natural processes. Somewhere quite a bit further down the list falls the technique “ask Amitai Etzioni.”
Strip-Search Machines on the International Scene
This week, Secretary of Homeland Security Janet Napolitano is pressing countries around the world to use “strip-search machines,” low-power x-ray and radio wave scanning devices that reveal what is underneath travelers’ clothes. The machines provide a small margin of security at a high risk to privacy.
And those privacy risks are manifesting themselves overseas. On AllAfrica.com, news service This Day reports on how strip-search machines have been used to peep at travelers as nudes in Lagos, Nigeria:
[D]uring off-peak periods, the aviation security officials, who are trained on the use of the scanners, usually stroll from the cubicle located in a hidden corner on the right side of the screening area where the 3D full-body scanner monitors are located. They do so to catch a glimpse of some of the passengers entering the machine and immediately go back to view the naked images, in order to match the faces with the images since the faces are blurred on the monitors while passengers are inside the machine.
The report notes that one of the “conventional scanners”—a magnetometer, most likely—was put out of service to corral people into the strip-search machine.
Italy has abandoned strip-search machines after a six-month test, due both to privacy issues and “because they are slow.” This is the sleeper issue that may soon wake as more machines show up in our airports: Strip-search machines take a very long time compared to magnetometers.
There are more than half a billion enplanements in the United States each year. If each traveler is delayed by 10 seconds, strip-search machines would waste nearly 1.4 million hours of Americans’ time directly—much more if you include the schedule-padding that all fliers would have to practice to avert strip-search machine delays.
The margin of security provided by these machines is small. In an interview on Fox’s local affiliate in D.C. last night, I said, “If we go down the strip-search machine route, there’s going to be more methods of concealment, and we certainly don’t want the TSA looking there.”
Hopefully, my poor grammar distracts you from the full import of that line.
Strip-Search Images Stored
The Transportation Security Administration will be sure to point out that it was not them—it was the U.S. Marshals Service—that kept ”tens of thousands of images recorded with a millimeter wave system at the security checkpoint of a single Florida courthouse,” according to Declan McCullagh of C|Net news.
The TSA has taken pains to make sure that their use of strip-search machines does not produce compromising images of the traveling public, but rules are made to be broken. How do you protect privacy in the use of a technology that is fundamentally designed to invade privacy?
Good Thing There Are So Few Bad Guys
Returning from Chicago this past weekend, I noticed that they were using strip-search machines in several security lanes at the TSA checkpoint (ORD Terminal 1). Naturally, after the ID check—yes, I did show ID this time—I chose a lane that lead to a magnetometer rather than a strip-search machine.
Annnnnd, anyone wanting to smuggle a plastic weapon could do the same.
For all the money spent on strip-search machines at ORD, and for all the exposure law-abiding travelers are getting, the incremental security benefit has been just about exactly zero. Security theater. TSA has to direct people to lanes mandatorily or install strip-search machines at all lanes to get whatever small security benefit they provide.
Going through the strip-search machine is optional—you can get a pat-down instead. Signage to that effect was poorly placed for informing the public, at the entrance to the strip-search machine. Travelers might read it as they stepped into the machine, realizing from that standing spread-eagle position that they didn’t have to be there.
The Onion? No, Real Life
The Smoking Gun and Miami Herald report that a Miami International Airport TSA worker has been arrested for beating up a co-worker who joked about his endowment after observing the assailant walk through a whole-body imager or “strip-search machine.”
EPIC: Suspend Airport Body Scanners
Last week, the Electronic Privacy Information Center released a petition from a group it spearheaded, asking the Department of Homeland Security to suspend deployment of whole-body imaging (aka “strip-search machines”) at airports.
The petition is a thorough attack on the utility of the machines, the process (or lack of process) by which DHS has moved forward on deployment, and the suitability of the privacy protections the agency has claimed for the machines and computers that display denuded images of air travelers.
The petition sets up a variety of legal challenges to the use of the machines and the process DHS has used in deploying them.
Whole-body imaging was in retreat in the latter part of last year when an amendment to severely limit their use passed the House of Representatives. The December 25 terror attempt, in which a quantity of explosives was smuggled aboard a U.S.-bound airplane in a passenger’s underpants, gave the upper hand to the strip-search machines. But the DHS has moved forward precipitously with detection technology before, wasting millions of dollars. It may be doing so again.
My current assessment remains that strip-search machines provide a small margin of security at a very high risk to privacy. TSA efforts to control privacy risks have been welcome, though they may not be enough. The public may rationally judge that the security gained is not worth the privacy lost.
Wouldn’t it be nice if decisions about security were handled in a voluntary rather than a coercive environment? With airlines providing choice to consumers about security and privacy trade-offs? As it is, with government-run airline security, all will have to abide by the choices of the group that “wins” the debate.
Stunner: Strip-Search Machine Used to Ogle
An airport security staffer faces discipline after using a whole-body imaging machine to ogle a co-worker, according to this report. It’s another signal of what’s to come when the machines are in regular use. (In a previous post, I aired my doubts about the veracity of reports that a famous Indian movie star had been exposed, but the story foretells the future all the same.)
I’ve written before that whole-body imaging machines in airports create risks to privacy despite TSA’s efforts to minimize those risks with carefully designed rules and practices.
Rules, of course, were made to be broken, and it’s only a matter of time — federal law or not — before TSA agents without proper supervision find a way to capture images contrary to policy. (Agent in secure area guides Hollywood starlet to strip search machine, sends SMS message to image reviewer, who takes camera-phone snap. TMZ devotes a week to the story, and the ensuing investigation reveals that this has been happening at airports throughout the country to hundreds of women travelers.)
Rules against misuse of whole-body imaging are fine, but they are not a long-term, effective protection against abuse of “strip-search machines.”
The Department of Sneak-a-Peek
The Drudge Report’s provocative banner this afternoon combines with other news to suggest a homeland security trend: sneakin’ a peek.
The other story is the question whether the nominee to head the Transportation Security Admnistration violated federal privacy laws as an FBI agent, then omitted key information in reporting it to Congress. Robert O’Harrow of the Washington Post (returning to the privacy beat!) reports that Erroll Southers, a former FBI agent, made inconsistent statements to Congress about wrongly accessing confidential criminal records about his estranged wife’s new boyfriend. (More here.)
That was 20 years ago. Being fully transparent about it today would almost certainly have prevented it from being disqualifying. But over the last 20 years, data collection has grown massively, and federal access to personal data has grown — including access by the TSA. Data about the appearance of your naked body may be on the very near horizon.
Southers’ problem with sneaking a peek at confidential records — and whatever cover-up or oversight in his reporting of it to Congress — signal precisely the wrong thing at a time when people rightly want their security not to be the undoing of privacy.
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