Thursday, November 25, 2010

No meaningful precedent for TSA's so-called "administrative searches

Quick note on Thanksgiving -- still re-writing this:
A quick check of the net tells me there is no actual "administrative search" precedent
for the level of intrusion on sexual privacy in the new TSA policy. Just about all you need can be found here:

The so-called precedent for consent or not concerned a bulge in the pocket of person who wanted to leave the airport without any more search (he got 70 months for possession of a couple of ounces of cocaine!) under the old, non-sexual privacy invading methods.

When I was a kid reading comic books, they had a novelty advertisement page that always featured special glasses you could look through womens' clothes with (I don't know if they worked with men :-]). Today Hollywood war movies feature infrared scanners you can see watch figures through walls with. The reality now is a technology that can literally see through your clothing.

Virtual strip search and private part groping require thinking through from scratch how the doctrine of "administrative search" applies -- just as sobriety stops did. Seemingly for opponents examination from first principles puts them in pretty good shape.

The article linked to above quotes CAMARA V. MUNICIPAL COURT:
"First, [area inspections] have a long history of judicial and public acceptance."
"Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results."
"Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy."

First, I have been on 150 prison visits where if you had tiny brass rivets in your plastic eyeglass frames (late '70s) or brass lace eyelets in your shoes you had to take them off and go through the metal detector again. It has always been the norm that nobody but incarcerated prisoners are subject to private area touching -- least of all across the board females and (especially female) children.
Second, essentially no canvasing technique other than the Israelies use to protect their tiny handful of planes can stop a terrorist with any initiative at all. You check shoes they switch to underwear. You check underwear ... if a domestic flight goes down with all this screening the very first thing investigators will look for is the presence of an obese Islamic passenger who could hide a turkey drumstick between their cheeks, wires and switch up nearby orifice, battery in their LCD flashlight. A homegrown terrorist can go to the extra expense of a round trip to Ireland (Canada?, Mexico?).
Third, the inspections could not be more personal in nature nor a less limited intrusion of a person's privacy. Your female children would much rather an unlimited search of their bedroom or entire house than to be touched on what one little girl called (her grandmother's) "special girl parts." That goes for lots of grannies too.

What we are looking at is a potential sea change in our expectations personal privacy. If the TSA can do it, soon everybody else will by setting up scanners to -- and cops on the street (nightclub bouncers too?) may begin to touch special parts only because they want to be as good as TSA (human nature?).

Case closed: you cannot subject a billion Americans a year to what feels like to the most vulnerable like virtual strip search (if confined strictly to airports I could endure that) and 100,000 male and female adults and children to public groping for what amounts to no reason at all -- unless you want to kill many more than one plane load of people every year in traffic accidents involving folks who drove to avoid unbearable loss of privacy (Osama can add the 1,000 extra killed in the three months after 9/11 to his score -- maybe the shoe and underwear bombers can start adding up their score as the stats come in following 20,000,000 violations every week.)

(Am I wrong? Are the figures only 1% opt out but 3 1/2% are enhanced-patted down? If you are willing to do the scan but much fear the grope like me that permanently threatens my greatest need for that kind of privacy -- only a matter of time)
Will add to the above: ask women who feel like they are being molested by (female) agents "enhanced" frisking them if they are concerned about airliners blowing up. They are not. Terror is a purely theoretical fear concerning only those who are not repulsed by the sneaky-peak scanners or the terrorizing frisks. Some say there is only one terror incident per 20 million airline flights.

Sales approach-wise you can try to make your point with eighth-grade math (e.g., will kill more driving) but the simple image of planes blowing up makes people feel like paratroopers who must be brave about lowering risks when there is no real danger at all -- and the sexual violations wouldn't stop a home-grown with an IQ of 100 anyway. But, sales-wise, putting the trade off in the context of the real fears of women and children and women-children can trump the brave paratrooper willingness thing.

1 comment:

Anonymous said...

I have some wonderful wisdom.