The Traveler Has No Rights

Second of a two-part series.

Last week, in Part One of this series, I examined the failures of the Transportation Security Administration’s new Advanced Imaging Technology (AIT), a clothes-penetrating scanning system that records highly sensitive images of passengers.

While the TSA has made numerous promises about the data gathered from these scans (such as not storing images or sharing them), most have been proven, either by mainstream media or the TSA itself, to be untrue.

In the roll-out for the AIT scanners, which aims to have placed 1,000 in U.S. airports next year, the TSA has focused on three main points to set the public mind at ease: anonymity (the TSA employee will not know whom they are seeing unclothed), consent (passengers have a choice between scanners and other methods), and intent (the scanners are necessary to ensure passenger safety). Let’s examine these three claims, and whether or not they justify the use of this technology.

For the sake of argument, let’s assume that the information in the machines is now completely secure, and cannot be stored, printed, or transmitted. Does anonymity justify the TSA’s claims to protect privacy? The TSA is, essentially, asserting that if a person is observed au natural by someone he or she does not know, a breach of privacy has not occurred.

Imagine that someone breaks into your home, wires your bedroom and bath with cameras, and then secretly films you. Dusting the vents one day, you discover the cameras and call the police. An investigation ensues. The culprit, a complete stranger, is apprehended. Your attorney handles the case, and you never see the criminal. Do you feel any less violated?

No, of course you don’t. The anonymity of the viewer does little to lessen the violation. The TSA’s premise for privacy invents a false distinction: that privacy is only violated when you know the person committing the violation. This home-breaking analogy is not perfect; for instance, the flyer knows that they are being viewed (although there have already been numerous complaints from passengers who were not made aware of the purpose of the machine, or were not aware of the graphic nature of the images). Still, the fact that the viewing party is a stranger who will never see you “in person” is no less a violation of privacy.

But, between you in your home, secretly recorded, and you in the airport, openly recorded, there exists another critical difference: consent. The TSA presumes consent, while the police do not. But consent in this case is a rather tenuous defense. Currently, the TSA maintains that passengers have the right to refuse an AIT scan. In other words, they still possess a right to choose. But choice itself is predicated upon viable alternatives. For instance, if the stranger who bugged your home left a note in your mailbox acknowledging the presence of surveillance, but threatening to release the images online if you notified the police, you would not have much of a “choice.” Either option is bad.

The TSA has already constructed a similar dilemma for passengers, who supposedly have a choice between the scan or a full body search (in itself, a loathsome alternative).

Many have claimed harassment or coercion upon refusing to undergo the scan. The New York Times reported that at O’Hare airport, one Army veteran was threatened with arrest for declining. Other passengers have complained of harassment, excessive personal searches, and ransacked luggage. Whatever element of consent that does exist is likely short-lived; London airports have already made scans mandatory for flight, denying passage to those who refuse to undergo the procedure.

Of the anonymity, consent, and intent trifecta, the least contestable is intent. The TSA’s aim is to improve security, and few would disagree that this is a vital goal. However, as I noted last week, other offices within the government have already called into question the efficacy of the scanners in curbing terrorism. The idea—stop terrorists—is hardly questionable, but the use of these machines to do so is. Security is not guaranteed by the use of more machines, only more effective machines.

The good faith claims of the TSA are further damaged by its own reluctance to consider even small steps to maintain privacy (for instance, why has the TSA made no effort to provide same-gender scanner personnel, as it does for any physical contact?). The pressure brought upon the TSA by individuals and groups, from Pope Benedict XVI to the Consumer Federation of America and several U.S. senators, has finally led to another possible solution, the use of an avatar to stand in for the traveler during the screening process. While not addressing the storage and data sharing issues, the avatar (a middle-aged male in a baseball cap) only shows highlighted areas of “concern” picked up by the machine.

Yet, even with the use of avatars, there are still serious problems that undermine the TSA’s claim of good intent, including public health. Scientists at Columbia, Arizona State University, and University of California, San Francisco have all raised concerns about radiation from the scanners. The TSA has merely tested whether the machines meet basic guidelines (guidelines developed by a board on which some of the scanner manufacturers sit), not how breaks or malfunctions in the machines could increase radiation, nor how their use may affect cancer patients, children, or the unborn. Nor does the TSA appear to have any alternatives in place for individuals in high-risk health categories.

All of these issues, from anonymity to health, are merely branches of the elemental concern: is it justifiable to remove the last barrier to privacy for the sake of security? If the line is not drawn at nudity, where is it to be drawn? Thus far, the discussion from the government’s side has been solely about implementation, not justification. From this perspective, the only barrier to further incursions on privacy is merely the absence of more invasive technology. As our technological capability continues to improve and expand, it is availability and convenience, not reason, which will decide the fate of personal privacy.

So we are left to inquire where the quest for complete security will end, and it almost certainly will not be with scanners. The idea of “complete security” is itself a fallacy. There will always be another trick by the terrorists, another line to be crossed. And where security supersedes all other concerns, so too practicality will triumph over morals, and eventually, trample what sets us apart from the terrorists: our individual rights, willed to us by the Founding Fathers.

In the hasty rush to let technology do the work of reason, citizens are surrendering their fundamental right to privacy. Benjamin Franklin once observed that “they who would give up essential Liberty, to purchase a little temporary safety, deserve neither Liberty nor Safety.”

In the current era, it would perhaps be more appropriate to say that those who give up essential liberty for safety will obtain neither. The creativity of the terrorists guarantees that threats to our security will continue to expand and evolve. But once our rights are surrendered, they are beyond reclamation.