Airline Security, Privacy, and Common Sense vs. the TSA

A lot of noise has been made over the new airport security measures being implemented across the nation by the Transportation Security Administration (TSA). Full body scanners (officially called AIT, or Advanced Imaging Technology) are appearing across the country, with invasive pat-downs offered as an alternative.

It’s what we need to prevent another terrorist attack, supporters say. But opponents insist it is ineffective, and a violation of our rights. I’m squarely in the latter camp, but before we discuss the problems and solutions, we will take a quick look at the facts and the pro-TSA arguments.

—The Facts—

Rationale Behind TSA Policy

TSA Administrator John Pistole defended the new procedures in a op-ed for the Washington Post:

More and more travelers now have the option of going through the Advanced Imaging Technology (AIT) machine, which can detect both metallic items and non-metallic substances such as powders, liquids and gels that can be used in explosive devices as we saw in the attempted attack last Christmas. These machines are the very latest in technological advancement and will eventually replace metal detectors, which have been in place since the 1960s. These machines are safe, efficient, and protect passenger privacy. They have been independently evaluated by the Food and Drug Administration, the National Institute for Standards and Technology, and the Johns Hopkins University Applied Physics Laboratory, which have all affirmed their safety. And the weapons and other dangerous and prohibited items we’ve found during screening have illustrated their security value time and again.

Regarding passenger privacy, Pistole says:

Rigorous privacy safeguards are in place to protect the traveling public. All images generated by imaging technology are viewed in a walled-off location not visible to the public. The officer assisting the passenger never sees the image, and the officer viewing the image never interacts with the passenger. The imaging technology that we use cannot store, export, print, or transmit images.

His op-ed is an excellent summary of the pro-TSA arguments. Most supporters argue it’s inconvenient, but they would rather be safe than sorry. Supporter David Castelveter, a spokesman for Air Transport Association (ATA), stated,

“At the end of the day, what’s important to me is flying safe… I want to get on the airplane and know I’m as safe as possible flying, so if that means going through the AIT machines or getting the pat-downs – if I’ve chosen to fly, those are the choices I’ve made.”

Reactions to the New Procedures

Polls indicate the country is divided on this issue, with a recent Zogby poll saying a majority (61%) is against the full body scans and pat downs. Perhaps more significantly, 48% of Americans will seek an alternative to flying.

Opt-Out Protest: Success or Failure?    The widely anticipated protests planned for Thanksgiving Eve did not create any spectacular delays in air travel. Mark that off as a complete failure, right? To the contrary, it was wildly successful.  First off, it was extensively reported, sparking discussion on the topic- which was the whole point of such a protest to begin with. The media ran with the story- and pretty much did all the work for the protesters. Second, it seems that the opt-out results were cleverly mitigated by the TSA, according to informal reports. By allowing more people to skip the AIT’s, there was little to opt out of. An earlier CBS poll claimed four out of five Americans approve the body scanners. However, the 1137 respondents were not asked about the pat downs. It seems there was some change of public opinion between the polls, perhaps due to the attention the topic garnered amid media speculation about the opt out protest that was planned for the day before Thanksgiving. Congress has responded with letters and proposed legislation. The new leaders for the House Transportation Committee called the new procedures “overly intrusive” and said “The entire focus of TSA’s efforts… needs to be revisited”. Meanwhile, the President says he “sympathizes with passenger complaints” but supports the TSA. The TSA resisted calls for change but has given into some of the pressure. After being told nothing would change, we hear that airline pilots are now exempt, Congress is exempt (surprise!), Children under 12 are exempt from pat-downs, “stick-figure” scanners are being tested, etc. These are small concessions overall, as Secretary of Homeland Security Janet Napolitano insists the body scanners and pat-downs are here to stay. Special Interests A look under the hood will reveal the engine of corportism at work, with many special interest groups involved with the body scanners. Former Homeland Security secretary Michael Chertoff may be the highest profile character in the revolving door , having given dozens of media interviews promoting the body scanners, without mentioning the connections he has with Rapiscan, one of the two companies that are involved producing the body scanners. Tim Carney has detailed some of the other political connections and scanner lobby information here. —What’s Wrong with the TSA Policies— Our Rights Are Violated How can these new rules violate our rights? “There are other options, you don’t have to fly”, we’re told. “Besides, if we don’t have a right to healthcare, surely we can’t have a right to a flight.” The problem with this argument is that government is (forcefully) inserting itself between two private entities (individuals & businesses) and their right to make voluntary exchanges and contracts. Our right to trade is violated when a third party forces itself into the transaction, as the TSA does. That is quite different from a “right to healthcare” as some TSA supporters have mentioned. We don’t have a right to goods and services from others; but we do have a right to trade. In a future Striking at the Root series, we will look more closely at our natural, inalienable rights- which arguably is one of the most critical but misunderstood issues of all time. Freedom, Security, and Privacy There appears to be a trade-off between liberty and security; indeed, the TSA’s reduction of our liberties are supposedly making us safer. But as Ben Franklin’s tired but timeless quote reminds us, there is no long term trade-off. The gross assault on basic human dignity and privacy should be self-evident and revolting. If you’re not convinced, read stories on what has actually happened1. The horror stories may be uncommon; but just the body scanner (which is a virtual strip search) and the pat-downs (which are really more like a custody search2) are an unprecedented reach by the government into our privacy. It’s truly amazing how hot the water is getting in America, and many people don’t even realize it. Constitutional Issues The Constitution doesn’t empower the federal government to nationalize security of air transportation. As per the federalist nature of the document, such powers are off-limits to the federal government, being retained by the people and their respective states. However, that “piece of paper” hasn’t stopped Washington from usurping such powers for a long time. In the current political climate, where Social Security, the Patriot Act, or the Federal Reserve are considered constitutional, the TSA must also be. We’ll save this deeper discussion on federalism for a future Striking at the Root post; but in the interim, there is another constitutional issue to address: the 4th amendment. The new security procedures are a violation of the 4th amendment, as an unreasonable, unwarranted search. It certainly seems unreasonable to (forcefully) search someone- in the manner the TSA now does- simply because they want to fly; that by itself doesn’t amount to probable cause. Would government scanning or groping everyone driving down a road or walking down a sidewalk amount to violation of the 4th amendment? Obviously. Yet that’s what the TSA basically does. Some lawsuits against the TSA are citing the 4th Amendment, including that filed by pilot Michael Roberts and another by Arkansas resident, Robert Dean. Outrageously, though, a former TSA assistant Administrator has blatantly said “Nobody likes to have their 4th Amendment violated going through a security line, but truth of the matter is, we’re gonna have to do it.” The Constitution and amendments are NOT optional. They are the highest laws in the government, trumping everything beneath them. Any law or judicial opinion that says otherwise would be void- at least, if we had the rule of law; but evidently, we have the perilous rule of man. Health and Safety Issues The safety of the body scanners are “routinely and thoroughly” tested by several institutions, the TSA says. Rest easy, right? Of course not. To begin with, as AOL News has reported, these organizations are not responsible for testing for the AIT’s continuing safety. Worry about the AIT’s working properly might be dismissed as paranoia by those who have unshaken confidence in the government. But the TSA’s spectacular failure to find up to 70% of guns, knives, and mock explosives from government testers should make the most ardent statist uneasy. The TSA simply doesn’t have a reputation worthy of such trust3. Four experts from the University of California sent a letter to the White House in April 2010 seeking information on the scanners so they could verify safety. From the AOL Report: “We found that essentially none of this information was known or made public, and more interestingly, it looked like this technology had not been independently vetted by the scientific community, published, peer-reviewed or even discussed openly,” Sedat told AOL News. “Essentially, all the information was coming from companies that were making the devices, and it looked like it was being parroted by the FDA and the TSA, which didn’t seem reasonable,” he said. In April, Sedat and his colleagues sent a lengthy letter outlining their safety concerns to the White House science adviser, John Holdren, asking that several specific areas — especially an impartial review — be considered. It was November, seven months later, before the White House replied. Sedat says he and his colleagues have “some heavily redacted reports which basically just raise more [danger] flags, because it’s very far from an independent, outside review.” The bottom line is that the the University of California at San Francisco group isn’t any closer to assessing whether there are health hazards from the scanners. “I would say we don’t know,” Sedat says. “We just don’t have access to the needed information. We’ve got 5 percent of the population that might be sensitive to X-rays. Are older people, myself included, at greater risk? What about pregnant women and children? These issues need to be addressed.” From a health perspective, the ideal exposure to radiation is zero. Obviously this is unattainable, since we are exposed to some radiation naturally. But the potential health danger resultant from increased exposure tetrahertz waves, which are emitted by the body scanners, could be problematic. It seems (at minimum) that they could do some genetic harm4. A greater understanding of the real health risks is needed before anyone boasts of the safety of the body scanners. Additionally, much more transparency from the TSA regarding the AIT’s is imperative so that independent experts can review the information. For me, as well as many others, the AIT’s are not a risk I would take right now- especially since it is unnecessary. Security Theater and Strategic Problems Whether it was requiring us to remove our shoes or banning printer cartridges, the TSA’s response has been quite reactionary and mostly security theater. This show makes politicians look good, but doesn’t actually protect us from terrorism. Reactionary policies don’t throw much of a roadblock in front of a serious terrorist- (not to mention the TSA’s despicable track record enforcing existing roadblocks5). When there’s countless tactics and targets, reactionary measures only force terrorists to modify their tactics and targets to avoid the few we have specifically reacted to.

You Ain’t Seen Nothin’ Yet  If the trend of the past decade is any guide, the TSA will continue to pile on more security measures in the future. But there is no need to guess: the TSA has made clear their intention to expand their “safety” procedures to buses, trains, and other mass transportation. Phony Privitization    The media says airports are toying with the idea of using private screeners instead of the TSA; but it is not real privatization. The TSA rules and procedures are still mandatory, no matter who executes them. Contracting out the TSA’s folly does nothing worthwhile to fix our problems. Security measures should be about preventing future attacks, not just looking back to previous attacks. But that won’t be enough. We must ask why terrorism happens. Politicians are loathe to consider the side effects of their warfare state. Yet, it is untenable to think any nation can meddle in the affairs of other nations, prop up dictators, kill Muslims at a > 30:1 ratio, set up hundreds of bases in over 130 countries, lock up innocent persons, torture, etc.; and not simultaneously anger some people- so much that the only way they think they can effectively fight back such a superpower is through attacks by smaller groups of individuals using the tactic of terrorism. It’s called blowback. Washington never discusses this, though; the warfare state, along with the welfare state, is the essence of today’s bloated government. As long as the people allow it and Washington is able to pay for the empire, we shouldn’t expect the terrorist threat to subside. Current Policies Result in More Deaths Since airliners and airports are not able to compete and offer different security measures suitable for those who find the TSA measures unacceptable, the current situation results in more people reverting to driving, which is statistically deadlier than flying. Steven Horwitz, a professor of economics at St. Lawrence University, agrees: “Driving is much more dangerous than flying, as you are far more likely to be killed in an automobile accident mile-for-mile than you are in an airplane… The result will be that the new TSA procedures will kill more Americans on the highway” A study [PDF]by researchers from the Cornell Univerity found that following new TSA procedures implemented in late 2002, resulted in 129 additional traffic fatalities in the fourth quarter of that year. This, as Nate Silver pointed out, is a rate equivalent to four fully loaded Boeing 737’s crashing each year. It’s hard to measure this kind of statistic precisely, but it is certain that the TSA’s security policies- however many lives they do manage to protect- also result in some unnecessary deaths. Current policies result in more deaths than there would be if the the TSA faced real competition. —The Solution— It seems many people support the TSA because they are not aware of any alternatives. Either more TSA tyranny or more terrorist mayhem. Fortunately, that is a false dichotomy. There is a solution (well, two- sort of) that doesn’t violate our rights; and provides efficient, effective security: the free market. How would that work? The Economics of Airline Security What are the appropriate form(s) of security for airlines? Full body scanners, bomb sniffing dogs, profiling, metal detectors, pat downs, or something else? How should it be implemented- perhaps there should be a quicker process for frequent fliers? The answer is not one that can be determined by a group of experts or government officials. The only group that can determine the proper answer are the consumers (passengers) and property owners (airports and airlines). In the same manner that one group of people cannot arbitrarily determine which flavors of toaster pastries, which types of cars, or what size of houses are appropriate for everyone, no group can determine the proper form airline security. There is no one size fits all solution; some people will desire more security than others and will be willing to pay extra for it. The structure of a free market offers numerous incentives that compel airlines to deliver the benefit of high quality security with the lowest possible cost. It is in the airline’s interest to take necessary measures to protect its property from terrorists that would destroy it; not only can terrorist attacks result in the loss of extremely expensive aircraft, but they will also result in damages for which the airline could be liable for. Additionally, customers demand security; it is unprofitable to offer insecure flights. Airlines that offer insufficient, invasive, or otherwise poor quality security will lose business to those who deliver what consumers want. Market Airline Security in Action How could people and businesses secure their own property? Specifically, how could airlines secure their property? Despite screening passengers, designing safe airplanes and enacting company policies that help fight terrorism, there is still a minimal risk of terrorism, which cannot be eliminated. This is where insurance would likely play a major role. It would be in the interest of both airports and airliners to require that planes be insured. From the airliner’s viewpoint, it would be a foolish gamble to own planes costing millions of dollars without insuring them; it would also be very risky should they incur liabilities through an accident. Likewise, airports would probably not take the risk of allowing uninsured planes to land on their property. Insurance companies, seeking to minimize the number of claims made, would have their own minimum security requirements for airliners. Instead of security theater or handing out pork to special interest groups, insurance companies and airlines would only be interested in procedures that truly improved safety. There are an infinite number of ways airlines, airports, insurance companies, customers, and other participants in the industry could work together and innovate better security methods and reduce costs. It’s impossible to predict how it will play out, but it’s certain to work better than socialized airline security. Why the Market is Always Superior Free markets always deliver vastly superior products and services because of the price system which gives constant feedback to businesses on the success and failure of their actions. Scarce resources are allocated where and how consumers want them since that is where the maximum profits are. Government institutions cannot replicate this because they are not subjected to the profit-loss regulation. Instead their income is taken involuntarily from society through some form of taxation. This results in what is known as the calculation problem. Under the TSA, there is no voluntary customer relationship. Instead, it has a coercively enforced monopoly in which potential passengers cannot opt-out of. As with all government programs, the TSA cannot determine if it’s policies are effective and efficient, because they face that economic calculation problem. Stop Overreacting to Terrorism Free market airline security should be coupled with a more sensible reaction to terrorism in general. The news will always focus on what’s rare- that’s why it’s news to begin with. Unfortunately, we humans tend to conflate these stories and the frequency they are discussed with the actual threat level. That is, till we decide to think rationally about terrorism and stop panicking. The truth is terrorism has almost no chance of directly affecting you. Lightning, car crashes, disease, et cetera are far more likely to bring an early end to your life. By partaking in public hysteria- and overreacting- we are making it harder for others to stay calm, handing victory to terrorists and more power to politicians, who are always happy to ‘help’. Security expert Bruce Schneier eloquently stated: By not overreacting, by not responding to movie-plot threats, and by not becoming defensive, we demonstrate the resilience of our society, in our laws, our culture, our freedoms. There is a difference between indomitability and arrogant “bring ’em on” rhetoric. There’s a difference between accepting the inherent risk that comes with a free and open society, and hyping the threats. —Conclusion— The current TSA policies are not only ineffective, unconstitutional, and potentially unhealthy, they are downright immoral and tyrannical. The proper balance of airline security, privacy, and common sense is up to the peaceful, voluntary actions of individuals, not the arbitrary reactions of politicians and bureacrats. We must decide for ourselves what we want and then patronize that business that best satisfies our demand. The incentives of a free market approach encourages efficient, effective security instead of costly and invasive security theatre. Refuse to overreact to the threat of terrorism. Make the TSA an issue both now and in the next election. Use it to test how much tyranny and sheer absurdity political candidates are willing to support. Tell airlines that you can’t fly until the TSA is gone. Opt out if you must fly- or find another way to protest. If enough of us are willing to fight, we will win. Notes: 1- TSA Stories: Detailed descriptions of less frequent abuses (here, here, here, here, here, here) and brief, common stories (here, here and here) 2- Worse than a Pat-Down: The TSA “pat-downs” would be more appropriately labeled as a custody search, as a former cop has pointed out: “A ‘pat-down’ search by definition is ‘a frisk or external feeling of the outer garments of an individual for weapons only. … anyone who watches cop shows knows what a pat-down search is. The words are part of the American lexicon, and the public’s image of a pat-down search by police is something that isn’t all that bad… In police work, [the TSA’s current method is] called a custody search [and] includes everything short of a cavity search. The TSA needs to be honest about what they’re doing. It’s not nice to lie to the American people” 3- TSA Lies and failures: Could not secure their own personnel files and records; At least some AIT’s can store images (the TSA denied this). Aside from the failures in government tests, Jeffery Goldberg and Bruce Schneier were able to get quite a bit past the TSA’s lame enforcement of roadblocks.See other issues here. 4- Tetrahertz waves harmful? See here and here. 5- Failure rate during government tests as high as 70% Photo credit: Constitution: kjd Cartoon: Found here. Airplane:Viewology.net