Jan 052012

Maybe there’s more TSA news breaking these days. Or maybe it’s just that I’m noticing it more. Whatever the reason, on the heels of the last post I have some new items to add. But maybe it makes sense to begin by explaining what this topic is doing on this technology blog. Airline security is, after all, somewhat peripheral to the usual subject matter in play here, which ordinarily pertains to the law as applied to computing and communications. Airplanes are obviously a technology, but that’s not what makes air travel security salient to this blog. It’s the law pertaining to air travel security that is. For one thing, it frequently involves the government using technology for policing purposes, which is indeed quite relevant to the questions raised here. Furthermore, the relevant law, and underlying policy values motivating such law, are often echoed in other aspects of technology law.

The recent news surrounding the TSA illustrates this. One story is a proposed law barring TSA agents from bearing uniforms and titles making them appear to have police powers, when they supposedly do not. “Supposedly,” because yet another story is about TSA agents threatening passengers with arrest when they try to record the screenings (and the state of New Hampshire’s desire to stop that practice).  Meanwhile yet another story is of a TSA union advocate insisting that TSA agents are working under unsafe conditions, the solution for which being, according to him, granting them more police power.  (h/t Popehat).

I find the last story perplexing because it seems to me the union advocate is focused on the wrong issue. At many airports full-body scanning x-ray machines have been installed without them having been sufficiently testing as to their safety. Not just for passengers, but for the TSA agents who must stand near them all day, possibly absorbing cast-off radiation. Maybe the agents aren’t at risk, maybe the machines are actually safe, but no one knows — a huge public investment has been made in installing these hugely expensive machines without anyone knowing for sure.  Passenger protests have thus far fallen on deaf ears, but if the union really wants to agitate for agent safety, this would seem to be a clear and present danger to focus on railing against.

In any case, from a policy standpoint, here is an example where lawmakers decided to just throw a technology at a problem without first determining whether it was an appropriate or efficacious solution — or one that actually created a danger itself. Such unfortunate policymaking is certainly ripe for this blog.

The full-body scanning machines also perpetuate an illusion that policy makers have been reluctant to let go of, that being the idea that anything is knowable. And that anything SHOULD be knowable. Although this issue may have possibly been slightly ameliorated since they were first installed, the x-ray machines, and the full-body scanning millimeter wave machines, also raise huge privacy concerns. It’s as if lawmakers envied Superman’s x-ray vision and decided that if they, too, could see through solid objects, like people’s clothes, they would be just as good at crime fighting. Superman is, of course, fiction, but with policies like this, so is the Fourth Amendment. The government does not get to know private details about people without probable cause of a crime. And wanting to board a plane is not a crime. Yet the government (or the federal government, at least) feels it should be entitled to search through passengers papers and effects, both literally and figuratively, in no small part, it seems, because it can.  In the 2001 case Kyllo v. US the government had tried to use technology “to explore details of the home that would previously have been unknowable without physical intrusion” even though it had no warrant, and its efforts were stymied.  But the restraint of the Kyllo decision seems to have increasingly little impact.  The temptation to deploy technology designed to allow the government to know everything about everyone is frequently too tempting for the government to resist.

Which, returning to the TSA news, is why the proposed law to de-uniform the TSA confuses me. Some legislators are concerned that the TSA is acting like police without actually having police powers. The thing is, these people DO have police powers, whether they have been officially endowed with them or not. It’s not random people we let look through people’s luggage and under their clothes; it’s agents of the state using actual state power to deny the right to travel and threaten with arrest. Justly or unjustly, constitutionally or not, they are fulfilling a police function. It’s time to acknowledge it so then we can finally decide how much power we want these police to have.

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