Fourth Amendment Rights are Not a Trivial Annoyance

The nation has been facing, ever since September 11, 2001, a mounting pressure to surrender vital liberties in the interest of security. Now, the government is implementing a plan, several years in the works, to require travelers at airports to pass through full body scanners that snow security agents naked images of the passengers’ bodies. The Electronic Privacy Information Center says the scanners violate the Fourth Amendment.

In response to the EPIC lawsuit, a government lawyer has reportedly responded by saying the Transportation Safety Administration (TSA) is responsible for ensuring passenger safety, using the latest technologies, and that efforts to fulfill that mission “should not have to stop every five minutes for comment and rulemaking”. This is an offensive and dismissive remark that puts basic liberties at the margins and privileges the arbitrary power of security officials over the rights of individuals.

The fact is: requiring a full-body scan, exposing the naked body of innocent people, subjecting them to extreme suspicion, is not only undignified treatment, it runs afoul of the Fourth Amendment, which specifies that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This Fourth Amendment wrote into our Constitution the very vital principle that government can take investigative action against citizens only with specific, verifiable evidence, approved by a court of law, suggestive of specific criminal activity, and in line with existing law. Clearly, full body scanners that subject ordinary citizens not suspected of any crime to a visual strip search make citizens less “secure in their persons”.

But the language of the government lawyer in question is perhaps even more troubling than the existence of the scans themselves. We do, after all, have the right and the privilege to be able to challenge such violations of basic rights in court. But the attitude that government “should not have to stop every five minutes” to make sure basic rights are not violated is a suggestion that we should not only lose our Fourth Amendment rights, but also the right to seek redress for grievances, to challenge our government’s overreach.

It is obvious why the psychology of convenience would lead someone involved in defending an unpopular policy to use the words chosen. But what is more important is that the dismissive tone and the use of the logic of convenience to downplay genuine civil liberties concerns is the same kind of logic used by authoritarian regimes to demand that rights monitors stop meddling in their affairs. It is the logic that says the government is doing what’s best; stay out of its way.

This policy is a complicated one, not least because it touches on very emotional, very sensitive, constitutional issues of citizens’ liberties versus government’s power. It is complicated still more by the fact that the global security environment now includes threats more diverse, more mobile and more potentially spontaneous than at any time in our nation’s history. Real human security is at stake, and it is very difficult, if not impossible, to predict where threats will emerge, or when, or in what innovative form.

Those of us who fly want to make sure we are safe, the aircraft that carry us are safe and that neither we nor anyone else is ever again used as fodder in a makeshift missile used to kill large numbers of civilians, as happend on September 11, 2001. We want to be secure. But there is an argument about security policy which holds that security agents who cast too wide a net build themselves a haystack in which they will never find the needle they are searching for.

It’s a real problem, a mathematical one and a practical one: if you always target innocent people for search, isn’t it possible that the huge proportion of useless searches will eventually crowd out the useful ones? How will a system designed to check innocent people for a specific type of threat —one hidden under clothing— have the time, or the flexibility, to catch the real threats that emerge to circumvent that system?

All blanket security measures have this in common: it is hard to tell whether they are designed to catch suspicious activity, or to dissuade those who would undertake it. Is the visual strip-searching of all passengers meant to catch guilty parties, or just to scare those who might be planning something? If it is the latter, is it not a poor use of a process that violates basic liberties? And won’t those with sinister intent just plan around the blanket visual strip searches?

To cast the issue in still more blunt, and recognizable terms: is this just an incredibly invasive, unconstitutional intrusion into the private sphere of citizens, which is also little more than the scan-based equivalent of asking did anyone give you any packages to carry?

I don’t know if there’s a way to get the information the TSA is seeking —the proof that there are no suspicious devices hidden under the clothing of people boarding a plane— without a full-body scan or an intrusive pat-down. But I do know our system does not allow any government official, even the Congress or the president, to circumvent basic constitutional protections. That consideration is not a bureaucratic inconvenience; it is how we know our public officials are doing the right thing in service of the people’s interest.

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