Virtual Strip Searches: Amitai Etzioni

Private Security//In defense of the 'virtual strip-search.'

Amitai Etzioni

October 9, 2010//TNR

If you've passed through a major American airport in the past few months, you may have been subjected to a full-body scan. The new backscatter and millimeter-wave sensing devices that have been deployed across the country check whether people hide forbidden objects under their clothes. Privacy advocates refer to them as "virtual strip-searches." But how worried should one be about these scanners? Are they truly a grave threat to individual privacy, as civil libertarians contend?

I come at this issue as a communitarian. This philosophy, about which I have written extensively, holds that our 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. (For more discussion, see The New Golden Rule.) Viewed through this lens, I must say that the case against these scanners is deeply unconvincing.

The actual threat to privacy posed by these scanners has been inflated using sensationalistic imagery. In order to illustrate how intrusive this "strip-search" is, civil liberties advocates often display a rather graphic image obtained from a scanner. Yet they neglect to mention that the image is not of an airline passenger but of a TSA employee who volunteered to test the machine. (After all, if someone is willing to expose themselves, especially for a good cause, we have little reason to object.)

Moreover, as you can see, the images of passengers that actually appear on TSA screens are a far cry from the one circulated by civil liberties advocates, because the scanners are equipped with two kinds of privacy filters. One conceals the genitals and the other the face. (What's more, new scanner software replaces the realistic images of the passengers who are being scanned with a cartoon of a generic, clothed body, and marks areas that should be checked further. This software is currently being tested.)

Further preserving privacy, TSA staffers who view the images are in a separate room and are unaware of the identity of the passenger who is screened.

True, when we deal with millions of travelers, day in and day out, someone somewhere will cross the line. Thus, civil libertarians make much of the fact that a scanner in use in a Florida courthouse had stored over 35,000 images (although there is no evidence that anybody dispersed these images to people not authorized to review them). Yet efforts to flag such incidents should not distract us from the essential fact that these privacy violations are exceedingly rare and not necessarily damaging.

To wit, there is virtually no evidence that body scanners have actually harmed Americans. Indeed, civil liberties advocates generally do a poor job of explaining precisely what kind of harm the scanners are supposed to cause. "Libertarians may contend that the new security measures have a “chilling effect” on people beyond those directly affected. However, there is little evidence of this effect, and it is hard to explain what exactly it means in concrete terms. Do fewer people fly because of the scanners—even when dealing with short distances, where there are ready alternatives such as the Acela and rental cars?

The ACLU further asserts that the scanners amount to “a significant assault on the essential dignity of passengers” but provides no concrete evidence to this effect.

On the contrary, the people whose dignity is supposedly being assaulted do not feel that way : A January 2010 CBS News poll found that roughly three out of four Americans (74 percent) think airports should use full-body x-ray scanners because “they provide a detailed check for hidden weapons and explosives and reduce the need for physical searches.” Who should we trust to judge what does or doesn't threaten a passenger's dignity? Civil liberties activists, or the passengers themselves? As the public is well aware, being unable to fly without fear of being bombed out of the sky assaults people, and not just their dignity.

Most important, civil liberties advocates also ignore the fact that people who subject themselves to body scans do it voluntarily. They are free to choose a pat-down rather than pass through the millimeter-wave machine, and even then about 70 percent of Americans say they prefer to be scanned. (The option of choosing a pat-down should not be considered unduly coercive, since random pat-downs were mandatory even before the installation of body scanners—and civil libertarians cannot seriously argue that there should be no scrutiny at all.)

Even a strong libertarian should agree that if one consents to a search, especially when there is a ready alternative, there is no room for challenges. All of these facts suggest that the main libertarian criticisms against body scanners are simply not credible.

Finally, there is the core question of proportionality and context. The real issue at hand is what experience scanners provide to most people, mostof the time, how frequent exceptional violations of privacy are, and what remedies are in place.

The Electronic Privacy Information Center (EPIC), in its critique of scanners, states that new security measures “present privacy and security risks to air travelers because they might create data files directly linked to the identity of air travelers. These files, if retained, could provide the basis for a database of air traveler profiles.” (Emphases mine.)

The New Republic's Jeffrey Rosen argues that "the greatest privacy concern is that the images may later leak.” Other privacy advocates hold that the radiation involved may harm one’s health. Yet these concerns—almost entirely hypothetical—pale in comparison to the possibility that terrorists might bring down more airplanes, or worse.

And, in their core mission of deterring terrorists, the body scanners cannot help but work. The ACLU argues that, “It is far from clear that body scanners would have detected the ‘anatomically congruent’ explosives [Christmas Day bomber Umar Farouk Abdulmutallab] hid in his underwear.” And, it says, “some experts have said explosives can be hidden by being molded against the human body, or in folds of skin, and British newspapers are reporting that government testing in the UK found that the technology comes up short in detecting plastic, chemicals and liquids.” But this type of argument—the same type that the ACLU applies to nearly every security measure—is a bait and switch. It does not answer the question of how much security the scanners add.

Simply put, security effectiveness does not require 100 percent success, just a significant increase in the detection capability of the measures in place. In this way, the millimeter-wave devices narrow the opportunities for terrorists, add ways in which they can be detected, increase the probability that they will make an error, and reduce their confidence—as well as the confidence of those who employ them.

When all is said and done, we must vigilantly protect our rights, but we must also be concerned about our security. The spirit of this approach is embodied in the Fourth Amendment, which does not ban all searches—only unreasonable ones. And the searches that body scanners perform are reasonable, if we keep in mind the fact that terrorists are far from done, and that our nation has a vital interest in protecting not just rights but also lives.

Me (briefly):

Good argument. Really good argument. I'm convinced. Though before I read it I would have been one of the 70% who, without having thought that much about it, would have favoured the body scanners' use.

I'd like to see someone here make the case against.

Me:

Good argument. Really good argument. I'm convinced. Though before I read it I would have been one of the 70% who, without having thought that much about it, would have favoured the body scanners' use.
I'd like to see someone here make the case against.

Malahat:

I would use a Reverse Willie Sutton Argument. When asked by the why he robbed banks, Sutton (I know I'm dating myself by the reference) is said to have replied, "Because that's where the money is".

The Reverse Willie Sutton Argument is that if you're a terrorist and see a security procedure that may make it more difficult to smuggle an infernal device through security, then you rationally turn to something where there the security isn't - such as lobbing a mortar overr the airport's perimeter fence, which is exactly what the fortunately incompetent IRA terrorists did at Heathrow in 1994, or driving a truck-bomb through the main entrance to the airport terminal, which is what two fortunately incompetent Islamist terrorists did in Glasgow in 2007.

...Meanwhile, you're subjecting hundreds of millions of innocent civilians to a time consuming, humiliating and costly Security Snipe Hunt.

Me:

Malahat it's an ongoing process.

Malahat:

Basman, yes, it is an ongoing process. But since guys like the Underwear Bomber should have by reason been caught by existing security procedures, then I think it's a legitimate question to ask whether the resources devoted to these machines could be better deployed elsewhere where existing security procedures, pace Willie Sutton, aren't adequate to counter known alternative means to achieve the terrorists despicable ends.

Me:

...then I think it's a legitimate question to ask whether the resources devoted to these machines could be better deployed elsewhere where existing security procedures, pace Willie Sutton, aren't adequate to counter known alternative means to achieve the terrorists despicable ends....

Okay, it's a legitimate question: what's the answer?

Malahat:

What's the answer? I don't know. But seems to me the author's central argument is "...Simply put, security effectiveness does not require 100 percent success, just a significant increase in the detection capability of the measures in place..."

I have trouble with "just a significant increase" as a decision threshold. With limited resources, should not the priority should be to devote incremental effort where the consequent increase in security is most significant in relation to the associated costs? If the author had made the case that the electronic strip search machines provided the most significant increase among the available alternatives given the costs of introducing them, I would have found the argument more persuasive. Re: the efficacy of this particular measure, "Maginot Line" came to mind.

Me:

Malahat, thinking more about it, I’m not sure what you cite is Etzioni’s “central argument. Firstly, the entire quote is

:…Simply put, security effectiveness does not require 100 percent success, just a significant increase in the detection capability of the measures in place. In this way, the millimeter-wave devices narrow the opportunities for terrorists, add ways in which they can be detected, increase the probability that they will make an error, and reduce their confidence—as well as the confidence of those who employ them…

I quote the whole paragraph because I think Etzioni assumes, rather than argues for, a sufficiently significant increase in detection capability for the purposes of my interpretation of his central argument. (I’ll grant you that he dips into this kind of technological evaluating in his immediately preceding paragraph.) I don’t think he has, or would claim that he has, the expertise to assess competently this enhanced detection or the prioritization of competing security technologies or measures. I know I don’t.

So his main argument is, I’d say, granted that significant enhancement, the derivable benefits for security outweigh the such costs as there are to our liberty, personal integrity and dignity, as such costs are argued for, for example, by the ACLU.

His essay starts with the general framing opposition between “individual rights” and the “common good” and then analyzes the new technology against the ACLU type claims. (There necessarily is some technical description in that analyzing but I think it’s of no moment in relation to the small issue we're gently mooting.)

I suggest that you're criticizing Etzioni for not making an argument he never undertook.

No?

p.s. When I granted you the legitimacy of the question, I hadn't really focused on what I take to be Etzioni's basic argument, so I'm sorry to have encouraged you down that track.

Malahat:

Re: Etzioni, Thanks for your thoughtful response. Excellent point - nolo contendere. But, I think that Etzioni is also implicity assuming that for a given significant increase in detection capability, other measures could not produce the same or greater benefits for security at less costs to liberty, personal integrity and dignity. I just get this "begs the question" vibe.