comments on new TSA procedures

As most of you are undoubtedly aware, the TSA has recently instituted new security procedures for airline travels. Travellers will now have the option of being scanned radiologically, or undergoing an extensive physical search. This post contains some of my thoughts on the matter. But rephrased politely. The short version is that I'm not a fan.

The legal justification for these searches (i.e. the reason they're Constitutional) is that you can avoid them by choosing not to fly. Since I live in Europe and my family lives the US, this is not an option for me. Nor is it a practical option for any other form of non-discretionary air travel (i.e. anything but a vacation). I'm no big-city lawyer, but this justification has always struck me as somewhat thin, a legal-theoretical fig leaf: a choice that includes no other practical alternative is de facto no choice at all. It gets even thinner when you see how far it gets extended. But let's just set all that aside for the time being.

The practical justification we've heard from officials is that they are 'necessary for security'. But arguing that a new security procedure is necessary for security is obviously circular and therefore invalid. The public has in essence been given no other answer to the question 'Is all this necessary?' than 'Trust us'.

There are, however, several practical reasons not to trust officials' public statements on the matter. This is not based on mindless anti-government paranoia or specialized knowledge on my part, but on the simple fact that they been repeatedly and publicly caught misrepresenting important information. For example, officials have claimed that the full-body naked images produced by the scanners cannot be saved. At the same time, US Marshals operating the same machines in Orlando, Florida have already been caught saving 35,000 of these images.

One might argue that the potential for embarrassment (either by scanner or physical search) is hardly a serious concern relative to public safety. For myself, I'm inclined to agree. When I fly to the states this Christmas, I imagine a possible search would be something akin to a hernia exam at the doctor's office: unpleasant, but not insurmountable (the dearth of professionalism between my doctor and my previous experience with TSA personnel notwithstanding). However, I'm a white male, aged 18-49. In the same way I'm capable of imagining what it would be like for me, I'm also capable of imagining what it would be like for someone else. For a rape victim, cancer survivor, or child, any extensive physical search would be considerably more than 'unpleasant' or 'embarrassing'. It could justifiably be described as 'traumatic'. Current policy makes no consideration for this whatsoever.

Even more serious than this is the public health risk imposed by the scanners. Dr. David Brenner (Center for Radiological Research at Columbia University) and Dr. Peter Rez (in a study from the journal Radiation Protection and Dosimetry) have noted that the radiation dosage is likely 10 times higher than the information currently being given to the public. While still small, it remains significant.

"I don't think anybody would argue the point that the individual risk is small. Whether it's one in 10 million or one in 100 million, it's very small," he said in an interview. "But multiply that times 700 million people – the number of people getting on planes currently – and that's the public health risk."
...
Rez agrees the individual risk is still negligible. "It's a 1-in-20-million chance of dying from radiation for each scan," he says. "Your chances of being struck by lightning in the US in any year is 1 in 500,000. But the probability of being blown up in an airplane by a terrorist is around 1 in 30 million. So the risk from the scan is about the same as the thing you're trying to prevent."
...
The result, he maintains, is "you will end up with some number of cancers coming out of each year's scanning operations." Applying it to the 125,000 commercial airline pilots and perhaps 125,000 other flight personnel, each averaging 250 scans per year, Brenner estimates "there might be five cancers, or two fatal cancers, resulting from a year's worth of X-ray screening" among airline personnel.

In response, one might argue 'Well sure, there are risks. But don't the security benefits outweigh these costs?' Determining this would require a rather gruesomely utilitarian calculation: 'How many innocents sentenced to slow, painful deaths by cancer without their knowledge or consent are the gains in security provided by these scans worth?' I'm not exactly sure how to do the math on that, nor would I want to. I see it as a little like supporting capital punishment while at the same time acknowledging that a certain number of innocent people will be executed. Ethically speaking, given such information, the acceptable number of sacrificable innocents is zero. The ethical case for this is all the more obvious when those drawing lottery tickets for the sacrifice are not criminals you've read about in the newspaper but you and your loved ones.

On a related note, officials have claimed that those travelers selected for additional screening are chosen at random. This is, once again, a misrepresentation. Deirdre Walker, a retired law enforcement official, has published a detailed and well-balanced account of her experiences with the new procedures. I urge anyone interested in this issue to read the article in full. The following passage is of particular interest:

Over the last fifteen years or so, many police agencies started capturing data on police interactions. The primary purpose was to document what had historically been undocumented: informal street contacts. By capturing specific data, we were able to ask ourselves tough questions about potentially biased-policing. Many agencies are still struggling with the answers to those questions.

Regardless, the data permitted us to detect problematic patterns, commonly referred to as passive discrimination. This is a type of discrimination that occurs when we are not aware of how our own biases affect our decisions. This kind of bias must be called to our attention, and there must be accountability to correct it.

One of the most troubling observations I made, at both Albany and BWI, was that — aside from the likely notation in a log (that no one will ever look at) — there was no information captured and I was asked no questions, aside from whether or not I wanted to change my mind.

Given that TSA interacts with tens if not hundreds of millions of travelers each year, it is incredible to me that we, the stewards of homeland security, have failed to insist that data capturing and analysis should occur in a manner similar to what local police agencies have been doing for many years.

Some might argue that the potential for intrusion is not the same between police and TSA. I believe my experience this past weekend demonstrates otherwise. Currently, there is no way to know whether a certain male screener routinely identifies predominantly women for additional screening. There is no way to identify whether a Latino screener routinely isolates African-Americans, or vice versa. To assert that the screeners are highly trained and do not engaged in this type of discrimination, whether passive or active, is unsupportable because there is no data. You simply cannot solve problems that you do not want to identify.

In other words, officials have claimed that these searches are random, but they have never bothered to check if they are random. We are asked to trust their public assertions, while at the same time a number of these assertions have already been publicly shown to be either baseless or false. If the TSA would like to improve public confidence in these new security procedures, a good first step might be to stop lying about them.

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We regularly sacrifice liberty for safety. Benjamin Franklin notwithstanding, this is a fact of modern life. It's a form of social contract: we agree to give up certain freedoms, and in return security officials promise to protect us. In a modern democracy, this is the case with the military, our intelligence services, and now air travel. The validity of this contract, however, is contingent upon transparency. We trust security officials to protect us but these officials need to offer something in return. They need to tell us why these new procedures are necessary: not with vague platitudes and spurious arguments, but with accurate and well-supported information. In a democracy, faith cannot be blind. This is has become all the more widely obvious now that we are being asked to sacrifice not just certain freedoms, but to risk our health and dignity (and that of our children and other loved ones) as well.

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If the TSA wants us to trust them, they need to start earning it. If real justification is not forthcoming and no steps are taken to remedy the myriad of problems with the current security procedures, passive opposition to these procedures would be justified. Possibilities include:

-Contacting one's representatives. The public outcry over these new policies is likely to come up for a vote at some point. Make sure that politicians know that any support for continuing these policies will cost them on election day, even if its only a lack of voter enthusiasm.

-Contacting airlines to complain. While they are of course not responsible for these procedures, they could be affected by them. If people were to avoid discretionary travel, this would hurt their bottom line. And even the risk of a decline in profits may be enough to spur them to action. Business groups have considerably more political leverage than individuals.

-Know your rights, and politely but rigorously insist upon them. Ensure that they actually follow the new procedures and don't stray even further beyond them. If a physical search becomes a sexual assault (as is the case, for example, if the screener fails to inform you properly), insist on speaking with a supervisor, call a cop, and file an official complaint. The legal costs involved in defending every bad search and lawsuit could easily become prohibitive. In the end, this is likely to be the most direct and effective solution. They may be indifferent to our rights, health, dignity, but those in charge certainly care about their budget. If the TSA is not willing to earn our trust, they need to pay for it.