Update: if you’re going to comment on this post, make sure you understand that the point I’m making is *not* that the TSA’s actions make us safer. Take the time to understand what I’m saying, which most commenters unfortunately didn’t.
I tried hard to resist the temptation to react to this, but the hype has become too strong and the debate seems to be completely one-sided. So here are my thoughts.
First, a quick summary for non-American readers who might not be aware of the “TSA controversy”.
In reaction to the latest terrorist plot that involved printer toner cartridges, the Transportation Security Administration recently decided to increase their scrutiny in the security lines of airport by including more “private” searches. In short, if you get picked at random in the line, you have the choice between two methods of advanced searches, and this “private patting” is one of them.
A lot of people immediately expressed concern about what they called an “invasion of privacy”, which is fair. Where things when downhill is when people started calling this new measure “abuse”, “molesting” and “unconstitutional”. In particular, this person decided to refuse to be searched and then made a big blog post about it.
The most ridiculous claim is that this new search “violates the Fourth Amendment“.
People making this claim need to read up on US laws.
Here is the short version: the Fourth Amendment protects citizens against invasive searches performed by the government or law enforcement agencies, not private entities. And airlines are private entities.
Yes, I know, the TSA is a government agency, but the contract that you sign when you buy a plane ticket is with the airline, which is a private agency. The terms of that contract are therefore not law, and the Fourth Amendment is not applicable.
Imagine that I’m throwing a party at my house and I tell you that if you come, I’ll search you before you can enter. Am I violating your Fourth Amendment by doing so? Of course not. You can refuse to be searched and you won’t get arrested if you do.
The reason why the Constitution and its amendments exist is because what it applies to is the Law of the Land. Anyone who lives in the US has to follow the law or they can be arrested. Because the consequences of breaking these rules are so severe, the Constitution codifies limits to the reach of these laws and also includes basic rights that will always prevail when they conflict with the law.
Here is what the TSA has to say about it, from their web site:
Courts characterize the routine administrative search conducted at a security checkpoint as a warrantless search, subject to the reasonableness requirements of the Fourth Amendment. Such a warrantless search, also known as an administrative search, is valid under the Fourth Amendment if it is “no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, ” confined in good faith to that purpose,” and passengers may avoid the search by electing not to fly. [See United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)].
When you refuse to be searched, you are not breaking the law, you are breaking the terms of a contract. It’s perfectly legal and quite common, actually. It’s not civil disobedience, it’s posturing at best and link baiting at worst.
Refocusing the debate
Now that we’ve cleared a few misconceptions, let’s focus on a few positive aspects.
We should question what the TSA is doing. Always. It’s healthy and it’s our right. Do these extra measures make us safer? Is everyone’s privacy respected? Are we making exceptions for exceptional situations? What are these exceptional situations? Is faith grounds for a waiver? Is the TSA transparent enough?
What concerns me about the TSA is that they seem to be reacting more than being proactive. They seem to only bump up their safety measures after a terror attack has happened or has been foiled. First, there were shoes, then there were liquids, and now it’s full body scans. Maybe in some ways, they’re not going far enough? Or maybe they’re going in wrong directions and always playing catch up?
Travelers want more security, but when they get it, they complain. What’s the right thing to do?
Benjamin Franklin’s quote comes to mind:
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
I could not disagree more.
I am perfectly comfortable giving up some liberty to gain safety. And if you have ever flown on a plane, you obviously agree even if you never realized it. But in doing so, I demand a very specific description of the kind of safety that I gain and I also want to be fully informed of the kind of liberty that I’m giving up. The TSA could certainly score higher in this department, such as explaining in more details in what ways the new searches make us safer.
FAQ
How do you feel about the fact that children get searched this way as well?
I’ve heard a few isolated reports that this is happening and it seems to upset quite a few people.
Maybe it is happening, or maybe it will. I can’t say I’m very happy with the idea, but let me ask a question back: imagine that in the near future, a plane blows up and we find out that a child was carrying the bomb. Would you still find that searching children is outrageous? Would you feel comfortable flying on a plane where children are not being searched?
Should we wait for something like this to happen before we try to prevent it?
Luckily, nothing such has happened, so maybe the TSA is just thinking ahead and doing exactly what I was hoping it would a few paragraphs above?
The poster in the blog was threatened of a civil suit, what do you think about that?
I’m not a lawyer, but this sounds excessive to me and maybe unjustified intimidation.
Having said that, I can’t help but put myself in the TSA agents’ shoes in trying to deal with this person. He might not be a terrorist but he’s certainly acting in a way should concern anyone in charge of security at that airport. I can imagine that everybody was a bit on edge during this incident. I also find it completely normal that this person would be escorted out of the aiport under close guard after this incident.
At any rate, this “civil suit” thing was certainly not the point of his post, just an unexpected benefit (from his standpoint, where all he wants is attention and traffic).
Anything more to add?
To be honest, I’m surprised to find myself on this side of the debate. I’m more the kind of person who is very aware of his rights and eager to see them respected and enforced. But the reactions I have read to this whole debate have been so uniformly onesided and motivated by angry and unreasoned feelings than reason that I just couldn’t take it any more.
If you are going to comment, please avoid profanity.
#1 by Umm...no on November 15, 2010 - 9:20 pm
Your invitation-to-the-home-analogy would only hold if you could fine me $11,000 fine and subject me to a civil suit for not agreeing to your terms.
#2 by Cedric on November 15, 2010 - 9:24 pm
You analogy would only hold if these things were part of the contract you sign when you buy a plane ticket. As far as I know, this was only mentioned in the blog post I described and that suit will probably never happen.
#3 by Daniel Hinojosa on November 15, 2010 - 9:25 pm
While an airline is a private agency, neither the airport nor TSA is private. It is public. That includes equipment and salaries of TSA. So. I am not buying your initial premise.
#4 by Mohamed Mansour on November 15, 2010 - 9:26 pm
Well to be honest … the searches don’t bother me, the huge lines do! When travelling from Canada to USA, we wait in huge line ups and it makes me really impatient and frustrated why they have 5 columns for searches/bags and they just use one. But when coming back to Canada, they have all of them opened.
Searches don’t bother me, but when I enter back in Canada with just one carry on luggage, they search the luggage inside out. They mess up everything, and at the end, they make me put my clothes back in. If they mess up the search, they should place everything back where it was out of courtesy …
Nevertheless, those people are doing their job, and no rights were broken, it is scary these days what people could do with what they bring. One true story I read long time ago, a person made a bomb in a plane by just bringing in chemicals stuffed in toothpaste, perfume, etc bottles.
We need mind vision, to digg deep in someones brain to see what their intension are. That will solve all problems I guess (for now).
#5 by Anonymous on November 15, 2010 - 9:40 pm
Let’s think about it a different way. Instead of getting into debate about the good/bad aspects of this kind of security provision, let’s ask ourselves why the heck did we even get into this kind of situation? Benjamin Franklin was correct if you think it this way.
This kind of security provision is just temporary and it won’t solve our security problems even in long term. But yes this might get us psychologically sick in long term. Outlaws do come up with new ways of conducting crime. Then what will be the next step of government/private agencies? Invade our bathrooms?
#6 by Cedric on November 15, 2010 - 9:42 pm
What makes you think that it won’t solve our security problems?
When was the last time that a plane blew up because of a bomb detonated by a terrorist?
Shouldn’t we at least consider the possibility that maybe at least some of these measures are actually effective in preventing terror attacks?
#7 by Dan Fabulich on November 15, 2010 - 10:13 pm
As I read your argument, it seems to me that you’re making two separate points: 1) that the TSA has a legal right to do what they’re doing, and 2) that we should acknowledge that the TSA’s more invasive searches are making us more secure — that there’s a legitimate tradeoff to consider.
But this is not a case where the TSA is making us more secure. They’re engaging in security theater, making us less secure while trying to make us feel more secure. Neither the pat-down search nor the new full-body scanners will detect contraband hidden in body cavities; they won’t even detect fluids in a “beer belly,” used in this 2008 investigation. http://www.theatlantic.com/magazine/archive/2008/11/the-things-he-carried/7057/
By making us more submissive, they’re actually making the problem worse. We all need to have our eyes open to catch bad guys; we must not trust the TSA to take care of the problem for us.
The fact that the new security procedures aren’t even effective is the crux of the legal argument against them: since they’re ineffective, they’re certainly not *necessary*, which means they may not be legal under the framework of the 1973 US v. Davis decision you cited.
More generally, any time government searches become more intrusive, it may require legal testing. The “no more intrusive or intensive than necessary” rule is a pretty good interpretation of a “reasonable” search. Are these new searches reasonable? Considering that they’re ineffective and highly intrusive, I’m going to say “no.” Being unreasonable makes them illegal.
Finally, there’s the molestation question, which you mention, but never directly address. A thorough pat-down requires touching genitals. Is a thorough pat-down sexual?
Certainly SOME pat-down searches have been sexual, in the history of mankind — some police officers have abused their search authority to get sexual thrills. Granting more people the normal authority to perform thorough pat-down searches (to touch people’s genitals as a normal part of doing their job) will probably result in more molestations, right?
If it made us safer from terrorists, maybe would could discuss the tradeoffs between increasing the risk of molestation and increasing the risk of attack. But in the face of a totally ineffective procedure, it’s hard to see why we should “calm down” about an elevated number of sexual molestations.
Instead, we should be upset, we should get the word out, and we should protest, if not resist, the new procedures.
#8 by Anonymous on November 15, 2010 - 10:14 pm
@Cedric
Ok let’s say that a majority of people really start accepting this immoral tradeoff for the sake of short-term in-flight security, then what’s next?
The point is we’ve been constantly trading off our liberty, freedom, civic and moral sense and our government is busy making our enemies. The real awareness that needs to be risen up isn’t about this TSA acceptance by us individuals. This is more about where do we stand to the rest of world, not just our society.
Tell me why is it that out of so many big countries, only ours was compelled to introduce such disgusting security measures? This isn’t by chance, this is clearly by choice.
My point is, there’s something wrong deep down in the government policies and acts that need to be fixed and our innocent nation must realize this now.
#9 by Cedric on November 15, 2010 - 10:19 pm
Hey Dan,
I think you’re dismissing the effectiveness of what the TSA does too quickly. As I posted in a comment above:
“When was the last time that a plane blew up because of a bomb detonated by a terrorist?”
Surely, the fact that I can’t even recall when such an even happened (if ever) should weigh in your decision to assess the effectiveness of their work.
Yes, what they are doing has limits and some of it might be useless and security theater, but let’s give some credit where credit is due to: they have been effective at preventing planes from blowing up in the air.
The real question is to determine what minimalistic search measures we can get away with without compromising the safety of travelers.
#10 by Cedric on November 15, 2010 - 10:20 pm
Anonymous: you are tackling a topic that is much broader than what I’m discussing in this post.
I tried my best not to bring politics into this discussion, which is already confusing enough as it is.
#11 by Pietrotull on November 15, 2010 - 10:36 pm
I have some experience trying to do pat downs and body searches due to military service and what I remember about body searches is that it is ridiculously easy to hide things in your crotch.
Unless you do it properly, there’s not much point to doing it at all.
People are just overly sensitive about their private parts. The doctor analogy is valid here. The context is the key.
#12 by Sam on November 16, 2010 - 12:24 am
Cedric,
when was the last time that a passenger was attacked by a bear in a plane?
Surely, the fact that I can’t even recall when such an event happened (if ever) should weigh in your decision to assess the effectiveness of their work.
What I’m saying is that you’re assuming causality where there may be only covariation. At the same time TSA searches got intensified, airlines started to make more thorough checks when one buys a plane ticket. Maybe those airlines measures have been sufficient to cause the absence of terrorists in planes since.
#13 by Anon on November 16, 2010 - 1:38 am
Thumbs up for Sam’s bear argument.
It makes me sad that someone potentially smart would despise this oh so wise sentence from Benjamin Franklin. So you one are of those guys that would also be fine to have all their communication taped by a government agency just because you “don’t have anything to hide”?
This whole airport security thing is a sham. Read up on it. It’s there just to make YOU feel more safe. To calm the masses.
Your private vs government example is a bit flawed. You’d have to have a police officer as a bouncer and a party is something one can easily say no to …which is not the case for flying in today’s world.
#14 by Russ on November 16, 2010 - 2:19 am
Two thumbs up for Sam’s bear argument. Correlation != causation.
Furthermore, I am appalled by your “what if a child blew up a plane” argument. Are you so dominated by reactionary fear that you would approve the mandatory abuse of every child because of the (coerced) actions of one? Would you really be afraid to board a plane with an unsearched child on it? I can’t imagine living my life like that. I live in London. I board the tube every day exactly one station away from where one of the 7/7 bombs went off. The Monday after the attack, I and literally thousands of others boarded our train as usual, despite the fact that none of us (including Muslims) had been searched and all of us were carrying bags.
If you’re going to cower in fear every time there’s a new boogieman to be afraid of, you may as well hole up in your bedroom and never come out. The odds say that were you to live long enough, you’d be struck by lightning 20 times before being a victim of a terrorist attack.
#15 by Charles Miller on November 16, 2010 - 2:27 am
The time before last when I flew to the USA, everyone boarding the plane got patted down by security, no exceptions. This didn’t happen to anyone flying to any other destination, it was a TSA requirement for boarding a plane to the USA. I found the process intrusive, humilating and dehumanising.
If there were an alternative, I’d take it. I deliberately didn’t volunteer for any business travel to the USA this year largely as a result of how badly they treat travellers, but unfortunately since my girlfriend’s family lives there, including her terminally ill father, I can’t cut it out entirely. The world we live in is now designed around the fact that international travel takes hours, not weeks, so getting around by any other means is out of the question.
The idea that this is somehow between airlines and its consumers is ludicrous. Nobody in the airline industry wants this crap, it scares away paying customers. I’d quite happily take my chances and fly with an airline that did not impose such draconian (and mostly worthless) security measures on its customers, and I’m sure millions of other travellers would follow.
The whole process is imposed by jobsworths in the public service who are scared witless of the political backlash if something gets through on their watch and they weren’t seen to have been doing everything they could to prevent it (with an emphasis on ‘seen’). If we don’t speak up now, then we’re just going to have to bend over and take whatever they come up with next.
And I mean that last bit literally.
#16 by Christian on November 16, 2010 - 3:36 am
IMO the *only* effective security measure that has been implanted post 9/11 was the locked doors to the cockpit which can only be opened from the inside. This measure was sensible and didn’t interfere with or violate the rights of any passenger (on the flip-side it definitely was fun when they still allowed visits to the cockpit, but the “inconvenience” of not being able to do so anymore is negligible).
Everything else is just “security theatre” and doesn’t make flying more safe for anybody involved. The whole “war on liquids” is a farce. There is absolutely no precedence of a bomb being “constructed” on a plane out of liquids. Pouring two harmless liquids together and making them go boom works in Hollywood but not in real life.
They take away scissors for clipping my nails but as soon as I’m on-board I have access to metal cutlery. Makes total sense.
It takes about 5-10 grams of PETN (the stuff they stuffed into the toner cartridges) to blow a hole in a plane (according to various news sources online). That’s not a lot and I think everybody can think of various places where you can effectively hide that amount amongst your regular carry-on baggage. Mix with a person willing to commit suicide, stir and there’s absolutely no security measurement in place that is effective against this kind of threat.
So why are we not seeing any of this? IMO this is because the method (or rather its consequences) are quite ineffective. The damage caused on and post 9/11 hasn’t been the hijacked planes but the massive amount of collateral damage caused. This is something that cannot be easily done with the same precision by “just” blowing up a plane.
Just my .02,
Christian
#17 by noah on November 16, 2010 - 5:22 am
“imagine that in the near future, a plane blows up and we find out that a child was carrying the bomb. Would you still find that searching children is outrageous?”
This is fear mongering nonsense. You can justify anything with this line of thinking. What if we discover that the child had the bomb up their privates? Would we then subject children to cavity searches?
Every single policy that the TSA has applied to security checkpoints since 9/11 has been reactionary and pointless.
Do you know who really has to deal with terrorism on a daily basis and does a much better job of it that the US? Israel: http://www.thestar.com/news/world/article/744199—israelification-high-security-little-bother Read that article. In Israel, if it takes you more than 25 minutes to get to the airport lounge from when you walk into the airport, they have fail. 25 MINUTES! MAX!
Israel doesn’t bother with harassing and humiliating its travelers because that doesn’t work. The use behavioral profiling and intelligence gathering. None of this body scanner, remove your shoes, let me molest you crap.
9/11 was first an intelligence failure. Nothing the TSA has done since then has made us safer with one exception: Reenforced cockpit doors. It should now be impossible for anyone to take over control of a plane. Everything else is security theater and it makes all of our lives worse.
Name one plot the TSA’s idiotic new security measures have foiled. Not a single one. Several incompetent, would be terrorists have slipped through, but not one has been caught in a security line. Think about that.
#18 by Alan Cabrera on November 16, 2010 - 5:40 am
The TSA is not populated by Marvel comic book heroes.
The potential for abuse is gigantic. I have been in smaller airports where TSA agents were abusive but because I had to make it out for my flight I let it slide. There are no checks and balances. The environment is perfect for unchecked abusive behavior.
We’ve already heard of situations where disk drives were left connected to the scanners with thousands of pictures left on them.
#19 by Heath Borders on November 16, 2010 - 6:09 am
The relationship between ticket puchase and security screening is not a private business transaction. For your analogy to hold, TSA is nothng more than a for-rent government security agency. IANAL, so I don’t know the exact relationship between TSA and the airlines, but if it is even slightly government mandated, it should be subject to constitutional limits.
Further, you undermine your own poin about the applicability of the 4th ammendment with the judicial decision you quote frm TSA, which directly references the 4th ammendment validity of the searches.
Your point appears to be that safety is the top concern, damn the rest. I too value my safety, and I have flown often. However, danger is omnipresent, and we do not give the government equivalet power to curb threats in other parts of our lives. I don’t want the government to have the power to fully protect me because I don’t trust the government to be a good stuard of that power. Look to the abuses of power in the south during the civil rights act as a perfect example of why government should not be trusted.
#20 by Srdjan Pejic on November 16, 2010 - 7:36 am
From noah: “The[sic] use behavioral profiling and intelligence gathering.”
This is what no one defending TSA’s actions seems to pick up. If the terrorists reach the waiting line to go on a plane, it’s already too late. Nothing the TSA can do will stop that. Another thing that no TSA defenders have addressed is the use of airport staff to plant bombs on planes. They do not have to go through the ridiculous security theater, yet have full access to any plane. Background checks can be faked, profiling may or may not work, but focusing solely on only passengers is beyond stupid.
Same goes with screening pilots. Why screen them? A compromised pilot already has everything at his/her disposal to turn the plane into a giant bomb. Who cares if they’re carrying liquids or scissors?
I’m sorry, but there is no justification here.
#21 by Nathan Bubna on November 16, 2010 - 8:34 am
TSA heavy-handedness merely produces another, easier target. Now terrorists need only blow up the security lines, which often have more people than an airplane and would do more to disrupt flights.
The primary issue here is that the kind of “security” being employed here is never going to be effective against a threat with any brains. It will never do more than shift the vector of the attack. Intelligence gathering and intentional pursuit of known enemies is far, far more effective and far, far less obnoxious to the populace.
We need to carefully test checked baggage to deter non-suicide attacks, but intrusive scrutiny of passengers to deter suicide attacks is of very limited worth, due to the high cost (dollars, time and irritation), the low frequency of attack, the low chance of catching a smart threat, and the superiority of other techniques for suicide attack prevention.
And let’s not even forget the fact that this ridiculous over-emphasis on airport security is inherently disproportionate. Any terrorist group truly intent on causing fear will diversify targets and find many easier, higher-body count targets than airlines. Buses, subways, concerts, schools, malls, Amtrak, rush hour, bridges, and the list goes on.
Hijacking an airplane to fly into a building was evil genius stuff, but the days of hijacking are done. No flight crew or passengers will ever sit back and allow another hijacking. Period. 9/11 was the end of airline hijackings. In fact, even the fourth flight was un-hijackable because the news had spread already, remember? And now that hijacking is impossible, all you can do is blow up the plane, which is no more effective than blowing up any other mass transit.
So, exactly why are wasting all this time, money and goodwill on airplane security? If this were truly any more than security theater, we would be spending as much to protect trains, bridges, light rail and subways also. Picture that. Then you’ll start to see the insanity of the TSA’s airport “security”. The only reason they do all this crap at the airport is because they can get away with it there for theatrical reasons. And it doesn’t hurt that spending money on all this high tech security crap curries favor with industry lobbyists too.
#22 by Padre on November 16, 2010 - 10:27 am
There are many Americans who believe that if their jail is to big to walk out of then they must not be in prison! Ive seen comments on other articles where TSAs actions are defended. I bet that most of these pro-gropers are the same people who duct taped their windows and doors during the anthrax scare. The ones who think Reefer Madness was a live documentary and vote against marijuana laws (a substance that has never killed anyone) while cheerfully downing (or feeding to their families) FDA approved drugs that have killed tens of thousands.
For those who need numbers: I would venture to say that none of these safety at all costs people have looked at the actual list of accidents and incidents involving commercial aircraft.
See the following:[http://en.wikipedia.org/wiki/List_of_accidents_and_incidents_involving_commercial_aircraft]
Look at the numbers from 1991 to 2001, then from 2001 to 2010. Youre more apt to die, by better than 10 to 1 odds, of pilot error or a mechanical failure crash than bombs or hijackers. This whole security issue is a non-event. It does not make you safer. These rules allow TSA employees handle men, women & children in an inappropriate and/or illegal fashion if done anywhere else by anyone else.
Fascism exists when corporations run the government, not the people.
#23 by Eugene on November 16, 2010 - 11:15 am
Heath is on the right track. The airlines don’t make security policies themselves; they’re implementing to a government mandate. The disturbing part about this is that this mandate is secret. i.e. the public doesn’t get to know the law to which they’re subjected.
http://www.papersplease.org/gilmore/facts.html
The fact that airlines are private is irrelevant. The government shouldn’t be able to bypass the 4th amendment by forcing private parties contractually require the searches.
The relevant part of argument is that you don’t have to fly if you don’t want to be searched. So it’s true that you’re entering into a contract voluntarily, and all bets are off. I think it’s a bit absurd, since people do sometimes need to fly, but it’s enough of an argument to allow TSA to put any kind of reasonable security in place.
I’m waiting to hear about a case when someone needs to make a flight for a heart transplant and refuses to be searched 🙂
#24 by Dan Fabulich on November 16, 2010 - 2:20 pm
Cedric, if I understand your reply, I think you’re saying that the fact that no planes have exploded since September 2001 implies that the TSA is being effective.
There’s a lot wrong with this argument. First, the TSA HAS failed to protect our planes from bombing attacks. Remember the attempted bombing in Detroit on Christmas Day 2009? The TSA let that bomb on the plane. Then, as ever, eagle-eyed passengers were our only effective defense against this attack.
But, more generally, the very idea of the argument is invalid. The fact that the TSA is assigned to prevent something, and that thing has not happened, doesn’t mean that the TSA is the cause of it. I agree with Bruce Schneier that the only thing that has made us safer is reinforcing cockpit doors and passenger awareness. The TSA has made the problem worse, not better.
#25 by Jeff on November 16, 2010 - 4:40 pm
Your private entity argument is a non-starter for two, independently sufficient reasons. First, it’s government policy that’s being implemented. Second, airlines are what lawyers call “common carriers,” which means they don’t have the same latitude that you do when inviting people to your house.
#26 by Brandon on November 16, 2010 - 5:56 pm
U.S. airline passengers have been subjected to an old fashioned frog boiling for too long. Bit by bit, airport security has become more invasive and more of an inconvenience. People complained about each inconvenience, but it did not affect their decision of whether or not to fly. Now, however, people are being faced with a real dilemma. It has finally become invasive enough that people realize they may have to decline to fly or subject themselves and/or their families to something that they consider immoral.
Should I take my 2-year-old home to see Grandma and Grandpa for Christmas? Even if it means subjecting him, with some probability, to state-sanctioned groping. If I allow this, how do I then explain to him what “ok” touching is?
Kudos to noah for pointing out the absurdity of accepting violations of privacy in order to stave off future threats which are only limited by one’s imagination! Strip searches? Check. Body cavity searches? Check. Of children? Check. Urine sample? Check. Blood sample? Check.
The absurdity of the argument that the TSA is making us safer because we haven’t had a plane blow up in recent memory is equally absurd. This is made obvious when you consider that many of the additional TSA security measures have been in response to instances where the previous system allowed a potential terrorist past security checkpoints — and they still failed. The additional security measures aren’t to protect us. They’re to protect the TSA from having to answer to the next 9/11 Commission who’s out to cast blame for the next terrorist attack. If with each failed attack they react by implementing a security measure targeted at that specific attack, when a terrorist does finally succeed in blowing up another plane, they will say, “How could we have been expected to prevent this? We defended against every threat we knew of.” This will be honest, but not helpful.
By reacting to each failed attempt this way, we expose ourselves to a denial of service attack. First water bottles, shampoo, etc. Now toner cartridges. We just need a terrorist to put PETN in something that looks like a laptop battery and that will be the end of laptops on planes. Where does this line of reasoning stop?
In one sense I agree. It would be better if we could have a more reasoned debate about this. But, we’re past the time for that. The pro-“security” side has already poisoned the debate by hyping every failed terrorist act.
#27 by Stefano on November 16, 2010 - 11:39 pm
“When was the last time that a plane blew up because of a bomb detonated by a terrorist?
To measure the efficiency of a measure or a policy you need a control case, so:
When was the last time a bomb was detonated in an airport _outside_ the security zone protected by scanners, searches, etc. ?
or:
When was the last time a bomb was detonated in a plane coming from an airport that didn’t implement “naked” scanners, “enhanced” pat downs, etc. (that is, almost all the world except the USA) ?
Also, diminishing returns apply: when you increase security effort in one place, you get only marginally more security, because the terrorists move to less watched targets: trains, subways, other crowded places.
#28 by Hamish on November 17, 2010 - 4:49 am
“Yes, I know, the TSA is a government agency, but the contract that you sign when you buy a plane ticket is with the airline, which is a private agency. The terms of that contract are therefore not law, and the Fourth Amendment is not applicable.”
Ah, good, then in future I’ll fly with one of the airlines that doesn’t require me to be subjected to TSA searches. That would be like one of those house parties in which you can legally take illegal drugs as long as you state it on the invitation, right?
#29 by Sean Ness on November 17, 2010 - 7:39 am
Looks like Penn (of Penn & Teller) was *assaulted* in Vegas. Here is his story – http://www.pennandteller.com/03/coolstuff/penniphile/roadpennfederalvip.html. Looks like the legal issues are not so established.
#30 by Cedric on November 17, 2010 - 7:59 am
I think Penn (for whom I have a great deal of admiration)’s reaction is perfectly reasonable, and if this goes to court, I hope he will prevail.
You will also note that he was infinitely more reasonable than all these people screaming bloody murder. He didn’t say “touch me and I’ll have you arrested”, he simply said “You can touch me but you need to ask my permission first”. In effect, he seems to be in agreement with my overall position.
We should all welcome lawsuits that will come out of these new measures: they will allow to clarify precisely the legal bounds within which TSA agents can operate.
Surely, this is something we can all agree on, even those of you who think “I suck” because they disagree with the opinion I expressed in this post.
#31 by Bill K on November 17, 2010 - 9:09 am
It sounds like what you are saying is that if the government is forbidden from doing something, it’s ok for them to pass a law that forces someone else to do it for them (because that’s what’s happening).
It may not be the government you are signing a contract with, but that’s a pretty fine loophole.
What if they passed a law that all stores must make customers sign a paper saying that they are Christian before purchasing any groceries? The government isn’t making a law about the establishment of a religion, that is between the grocer and the customer…
Mostly I’d just like to see fear where appropriate. Find the things that kill the most number of people a year and tackle THAT, when terrorism gets to the top 20 I’m all for extreme measures.
#32 by Brandon on November 17, 2010 - 12:19 pm
It’s worth noting while it’s getting a lot of renewed attention today (because of the recent changes in airport screening procedures), Penn’s dustup with TSA happened in 2002! Apparently, nothing of significance came of it.
Penn understands that most people do not have the time or money to defend their rights in a court of law. For the rest of us, what is our recourse?
IANAL, but on the issue of contracts, is it possible for me to enter a contract wherein the terms of the contract are not disclosed to me? The TSA screening procedures are officially not disclosed and can be changed at any time. This being the case, it might be possible to argue that said contract is invalid. If contract law is the loophole that allows government workers to search me, when is the contract that supposedly allows government officials to search me in effect? If I purchase a ticket through a travel agent, does the travel agent need a power of attorney from me to enter me into the contract?
#33 by Anonymous on November 17, 2010 - 12:22 pm
So many good rebuttals on this thread — there are many good arguments here. Our politically correct culture in America is what causes so much confusion on the subject. I agree that locking the cockpit doors essentially solved the hijacking issue and proper intelligence and profiling will snare the remaining morons.
Cedric, go back and read post #17 from noah. That’s all you need to know.
#34 by Tom on November 17, 2010 - 3:33 pm
FTR,
I believe Pan Am Flight 103 in December 1988 over Lockerbie, Scotland may have been the last/only commerical airline to be taken down by a terrorist bomb.
#35 by Paul on November 18, 2010 - 1:12 am
As a non-lawyer and, in fact, non-American, I know little about which I speak, but I’m curious about this part:
“Yes, I know, the TSA is a government agency, but the contract that you sign when you buy a plane ticket is with the airline, which is a private agency”
As others have pointed out, I don’t buy this argument. My question (and I’m genuinely curious about this): Imagine that I, Mr Philanthropic Q Billionaire III (I wish) peeled a couple of billion off my pile o’ cash and started my own airline. I call it Fast-o-flot, and advertise it as an airline which doesn’t demand security checks, doesn’t check ID, doesn’t send you through metal detectors — rock up, hand us cash, and get on the plane.
Would the US Government allow my planes off the ground?
If not, it’s disingenuous to say that the contract is between airlines and passengers, when there are (I’m guessing) restrictions imposed on it by the government. If the government DEMANDS that airlines enforce these restrictions, it’s very simplistic to say that people’s concerns should be with the airlines and not the government.
#36 by Thomas N. Toscano on November 18, 2010 - 12:40 pm
I am very disturbed by the comment “I am perfectly comfortable giving up some liberty to achieve safety.” Using that, everyone should give up their cars and we would all be much safer. Maybe we should also start locking people up that spout extreme political views because a few of them may act on those views. The Fourth Amendment was used to say a woman has a right to abort a child. I don’t understand how you can stretch the Fourth Amendment to abortion and yet not say that federal employees do not have the right to engage in extensive searches without warrants.
#37 by Cedric on November 18, 2010 - 12:48 pm
Thomas,
I don’t see what’s so disturbing with my comment: I’m given a choice that I can still decline if I don’t like it. Are you saying you don’t even want to be given the option?
And as I said in the post, you are giving up liberty every day, for example by signing up for a cell phone subscription or your cable service. All these actions restrict your freedom but you do them anyway because you decided that what you gain in return makes up for it.
As for your comments on abortion, I fail to see their relevance to this topic (let alone their credibility).
#38 by Ross on November 18, 2010 - 6:03 pm
Regarding:
———-
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
I could not disagree more.
———-
I think you’re misreading ‘ol Ben. The point is “essential” liberty. You’re willing to give up “some” liberty to gain safety. Sure, we all are. But the question is, are we giving up essential liberty when we submit to these kinds of invasive searches? A separate issue is whether these searches are making us safer, which I would argue they most certainly are not.
I agree that this is not a constitutional issue but it’s not entirely clear cut that it’s entirely a private enterprise issue either since the government has their paws all over this.
#39 by Craig Tataryn on November 19, 2010 - 2:39 pm
IMHO, you should never *ever* give up your liberties. Fear allows the government to take them away from you and you just wind up like London where CCTV cameras all over the place, makes me sick. The argument: “you want to be safe right?”.
Sure I could give up flying, but I’d like teleporters first before I do that.
#40 by Bradley Schaefer on November 19, 2010 - 3:03 pm
There’s nothing really to say for us to convince eachother here, so I will post a hypothetical question for you.
If I wear a only a speedo through security, should I have to go through these scans? Should I have to go through a pat-down? Should I even have to go through a metal detector?
I’ll let you know what my local TSA thinks.
#41 by Amer M on November 20, 2010 - 7:36 am
The argument of “when was the last time a plane blew up because of terrorists” isn’t really effective, because it implies that the lack of planes blowing up are due to the efforts of the TSA security checkpoint searches, as opposed to other efforts or even lack of attempts.
The removal of shoes, limits on how much liquid can be transported, no sharp objects – like you said, these are reactive measures and painful reminders of how this strategy is not working. There are countless examples of people bringing firearms onto a plane that the TSA did not catch, and I’m sure everyone has a story about someone they know who ended up with nail clippers or a swiss army knife that the TSA missed.
The best thing we did was lock the cockpit door and put a gun back there. After that it’s just been a political show with lots of noise and no signal.
If you just consider the “liquid” threat, that was found by old-fashioned police work and the efforts of the intelligence community. All this funding should be sent to strengthening our law enforcement and intelligence abilities, not the visible circus at the airport which creates the *illusion* and not actual safety.
Consider Israel’s airport security measures:
http://www.thestar.com/news/world/article/744199—israelification-high-security-little-bother
25 minutes to get through to your gate and no one trades cancer for the illusion of safety.
Practically speaking, you don’t even have to consider the liberty argument, what’s been happening is wrong because it’s impotent.
#42 by TruthSeeker on November 21, 2010 - 10:27 am
Bottom line – this is Oppression and Tyranny – it is the clearest example of the Strategy of the Powers That Be (PTB) of PROBLEM – REACTION – SOLUTION. They CREATE a problem (Terrorism – which is mostly False Flag State Sponsored and Originated Terrorism) to create a REACTION (the people willing to tolerate measures they will now see as Necessary) and then they will Implement their ready and Pre-Planned SOLUTION. ( Problem – Reaction – Solution ) The War on Terror is as PHONY as the War on Cancer, or the War on Drugs… or the ridiculously phony Congressional Hearings on Walls Street Criminality. Don’t look to your government to save you – Wake Up…the Government IS the PROBLEM. And lastly EVEN Geraldo is realizing that 9/11 Building SEVEN, there is something REALLY WRONG with the “official story.” Wake UP Americans!!! The REAL SOLUTION to the PHONY searches and PHONY security is to return to where it ALL STARTED…9/11 and to have a REAL INVESTIGATION. We have been LIED TO America. As painful as it might be, it is time to WAKE UP, and DEMAND that the REAL CRIMINALS are sought, prosecuted, convicted and DEALT WITH. It won’t be pretty…and it will be very hard for many people to accept the TRUTH. (that elements within their own government and NOT Islamic “terrorists” were the Culprits.) International Oligarchy, Criminal Banking and Corporate Elite, are simply TIRED of Democracy. THEY are behind the move for a New World Order, a Global Totalitarian Police State, and we had better be awake with the Intestinal Fortitude to STAND UP to their TYRANNY. And be aware, that for Standing Up for your Rights will define you (in THEIR books) as a TERRORIST. Be Aware that THEY are the REAL TERRORISTS, using Islamic stooges as DIVERSIONS and DISTRACTIONS. They are scaring you with BOOGEY MEN… THEY are the real boogey men. And you had better figure it out, and fast. PLEASE Don’t be as STUPID as they Think you are. Get Educated on 911….More and More experts and lay people alike are figuring out what the RULERS dread we figure out. This is just as true of the London Tube Bombings…another PHONY False Flag Operation performed by MI6, CIA and MOSSAD….as the lead us toward yet ANOTHER PHONY WAR…the Clash of Civilizations… training people to feel HELPLESS and HOPELESS and to HATE EACH OTHER and TOTALLY miss who the REAL CULPRITS ARE. Wake Up People.
#43 by Piotr on November 21, 2010 - 11:37 pm
I just want to point out that everyday US-Mexican border is crossed illegaly by about 400 people carrying their furniture, drugs, guns and whatever they want.
If Al Kaida et al. are so clever and really want to smash US why the hell they don’t pass the border this way??? Maybe they don’t know about this, they just do not read newspapers, watch TV? Right?
#44 by ann on November 22, 2010 - 7:32 pm
The Fourth Amendment does not say that government agents must have a warrant to search, only that searches must be reasonable. What is reasonable depends on all the surrounding factors, so that a search
at a national border, e.g., is assessed differently from a search in downtown NY, or even before a flight from one domestic point to another domestic point. Establishing the constitutional limits of reasonableness falls to the courts and in the federal system that occurs only in the context of a lawsuit, criminal or civil.
This is new and I expect it to wind its way through the various courts. Even though the case is not exactly on point, US v Montoya de Hernandez, U.S. Supreme Court
in the early 1980s, sheds light on the issues involved, and the balancing of factors that go into the analysis.
We shall have to wait and see but my money is on administrative changes by the govt. as a policy/political decision.
#45 by Nick on November 24, 2010 - 3:47 pm
Look, it’s simple! What I see is all the people finding all these TSA measures both ineffective and humiliating.
Just imagine that tomorrow you’ll need to undergo (randomly) thorough rectal exam in front of the line. This, of course, will be explained and justified by possible threat of rectal bomb transportation. Will you fly? Will you consider this exam justified? How much can you take?
Disclaimer: I don’t live in the USA, never was there and I have taken only 2 (two) flights in my 30-year life.
#46 by Aaron Anderson on November 26, 2010 - 10:18 am
As others have mentioned the new TSA security procedures are an edict from a Federal government agency and the airlines and airports have absolutely no say in the matter. Even if an airport opts out of using TSA security personal they still must fully comply with TSA security protocols. Since this controversy originates from a government policy citizens by all means have a right to redress their grievances in a accordance with Republican principals.
Given a persons corporal body is their primer piece of private property there most certainly are 4th amendment constitutionality concerns with the new techniques. For thousands of years humans have worn clothes for cultural or religious purposes and inappropriate touching or forced removal of clothing was and still is considered assault. Consider the inhuman treatment Nazi concentration camp prisoners had to endure when they were being processed. Now the government has unilaterally determined that all travelers must subjugate themselves to these new techniques that potentially violate personal moral principles in order to travel aboard commercial airliners. Of course for now one has the option to deny themselves passage upon the most modern form of transportation to avoid the new process but The director of homeland security has recently publicly stated that this new scanning technology will be rolled out to other forms of public transportation in the near future.
There is also no doubt that these full body scans will be completely accessible and data mined by government intelligence agencies in the near future if not now. Full 3D facial data on millions of people is far to valuable of an intelligence asset to pass by.
In this discussion no one has mentioned the health concerns of this new X-Ray based technology. The Federal government has a suspect record when it comes to claiming a new drug or medical procedure is safe only to retract their assertions several years later after numerous deaths and lawsuits.
Another aspect of these new techniques is the blatant conflict of interest our public officials have in the implementation of these new scanners. In the tradition of the Washington revolving door former homeland security officials have vested financial interests in the success of these new machines.
This leads me to my final point that fear sells. For fifty years the fear of the soviets prompted massive government military expenditures and government malfeasance (Iran contra, covert CIA operations in South America, etc). Once that threat diminished low and behold the new transnational terrorist bogyman appeared on the scene and a new era of unfinanced military and security expenditures occurred. After years of conflict and hundreds of thousands of civilian deaths perhaps we would be far more safer by withdrawing our military forces and combating civilian terrorism with traditional intelligence and police action than relying on these new scanners.
When people fear their government, there is tyranny. When government fears their people, there is liberty. -Thomas Jefferson
#47 by TheBlindWatcher on December 1, 2010 - 12:10 am
Hi Cedric
I understand your request for commenters to understand your point:
“make sure you understand that the point Im making is *not* that the TSAs actions make us safer”
However, you make a number of points, and one of them *assumes” that the TSA’s actions make us safer. I’m not surprised that people would be commenting on that issue.
I’ll explain:
You ask us to consider whether we’d feel comfortable on a plane where children aren’t being searched.
To answer this, we have to know whether searching children makes us safer. By “throwing” that question at us, it’s obvious that you are assuming that it does make us safer; the question is only worth asking because it assumes that by searching children, the plane wouldn’t have blown up.
I hope this doesn’t seem pedantic, but it’s quite clear to me that the author of this blog believes that searching children makes planes safer.
Here’s the quote:
“let me ask a question back: imagine that in the near future, a plane blows up and we find out that a child was carrying the bomb. Would you still find that searching children is outrageous? Would you feel comfortable flying on a plane where children are not being searched?”
#48 by Josh on December 7, 2010 - 9:51 am
The bottom line is this: if people don’t like the security, they should opt for alternative transportation. The airlines should be the target of any backlash, not the government; the government will respond when the airline lobbyists start greasing palms to get the TSA to stop being so ridiculous.
#49 by Paul on December 17, 2010 - 6:01 am
As a Brit travelling to the US, the over reaction by the authoriies plays right into the terrorists hands.
The best way to beat terrorsim is to ignore it and continue living your lives as normally as possible. They can’t win unless we become paralysed by fear.
Millions of people inconvieniced and children being felt up at airports means that the terrorists have achieved exactly what they wanted!
#50 by Dwayne on February 8, 2011 - 8:24 am
Well I have to complement you Cedric on getting a couple of points out there which many people omit.
The Fourth Amendment Protects you from government action not dealings with private entities. I think you expressed this point well and you recognized the correct scope here, something most people don’t do.
Unfortunately I think that you have missed the scope of Benjamin Franklin quite and your statement equating choosing to ride on a plane (as you quite rightly pointed out is a voluntary contract between you and a non-government entity) with giving up some liberty.
“I am perfectly comfortable giving up some liberty to gain safety. And if you have ever flown on a plane, you obviously agree even if you never realized it.”
But you haven’t given up your liberty to fly on a plane. You have not been forced in any way, your liberty is the freedom from outside compulsion or coercion. Liberty and giving it up or keeping it has no real part in this subject despite the efforts of many a people who make clams to the contrary as you have pointed out.
Benjamin Francklin’s quote is a very good one to keep in mind and I like it very much I personally might have changed “deserve” with “will have” but he is right on. Unfortunately for the most part people don’t know what Liberty means. I am talking about the word here and how so many miss use it to describe what “they want”, there desires. It is not an affront to my Liberty if McDonald’s refuses to serve me a Taco (They don’t sell Taco’s) no more than a private airline company not only wanting money from me to ride on there plane but also stipulating the conditions under which I can, i.e. I must go through TSA Security station.
As for all of the comments on the effectiveness of this new change and yes some assumptions there of because well, there are a few aren’t there. As you pointed out that was not “intended” to be part of the post so I am leaving my comments out on that (in a surprising display of self control and not hijacking your post).