TSA Scanners, Technological Surveillance, and the Constitution

Last week the Transportation Security Administration (TSA) announced that it would discontinue further use of backscatter x-ray machines that result in naked imaging due to the manufacturer’s inability to meet congressionally mandated privacy requirements.  This is certainly good news for liberty-minded folks who wish to freely travel in a state without, in many cases literally, being molested en route.

Now, before the many official and private advocates of the growing police state begin asserting an influx of terrorism-related catastrophes because of this policy change, it is important to point out and truthfully acknowledge why the TSA exists in the first place.  Lining up passengers for all to see and giving them full-body pat downs and invasive scans does not deter terrorism, per se; it may serve as a warning, to be sure, but it also gives them plenty of encouragement and information to work with in pursuing alternative avenues for their designs.  (The greatest deterrent to future airline-related terrorism in America was provided by American civilians themselves – not law enforcement – when the brave souls aboard United Flight 93 decided to fight back against their assailants even at the expense of their own lives.  I believe it highly unlikely that remaining terrorists, generally the smarter ones, would expect a similar objective as what occurred on 9/11 to again succeed in light of this.)

To that end, perhaps such an approach is important symbolically but the agency’s nonetheless shocking ineffectiveness hardly justifies such extreme invasions of basic individual privacy.  It might be cynicism, but I think the truth of the matter is rather obvious: the TSA does not exist to protect our safety, it exists to facilitate our orderly and tranquil participation in the interstate commerce that is the government-propped airline industry.  This is perhaps why the TSA ceased making their internal efficacy reports public in 2006, following a 70% failure rate to properly screen and/or identify guns and knives stowed in carry-on luggage.

While this unexpected development is certainly a rare victory for the sovereignty of the Constitution, particularly with regard to the 4th Amendment’s restrictions on unwarranted and unreasonable searches carried out by federal law enforcement, the intrusive nature of the backscatter technology has nonetheless broader implications on individual privacy rights that largely remain overlooked (or at least, are not being openly discussed).

In 2001, the United States Supreme Court (USSC) rightly ruled a technology-based, unwarranted search of a suspect’s home unconstitutional in Kyllo v. United States.  But, as it is so often want to do, the Court did so for the wrong reason.  In Kyllo, the USSC determined that thermal imaging technology surveillance in particular was unconstitutional if conducted without a warrant because the technology in question “is not in general public use.”  Such rationale can hardly be objectively characterized as a principled approach to Constitutional restrictions and further illustrates how the courts in general and the USSC in particular steadily transform our social compact into a quaint dead letter.  As is typical of a statist judiciary, the Court decided in this case that the key factors were the nature, usage, and general availability of the technology in question rather than the preemptively restrictive nature foundational to the 4th Amendment.  That restrictive nature codifies that the government is not a natural entity in and of itself and thus has no inherent right to surveil its constituency at will without first procedurally demonstrating a compelling and reasonable cause, its relative choice(s) of technology entirely notwithstanding.

While it will be some time before this “escape hatch” is exercised with regard to backscatter technology specifically, the implications across the board where law enforcement surveillance technology is concerned should be clear enough.  As technology grows ever more inexpensive, miniscule, and lightweight, more and more people will put the various available forms into “general public use,” which pursuant to the USSC’s flawed reasoning can only result in eventual elimination of immunity from unwarranted searches and seizures in the face of inevitably proliferating technology.

Perhaps our Constitution needs an overhaul to properly account for this vast technological age.  Or, perhaps our politicians and jurists need an ethical overhaul to account for a growing lack of principle and virtue.  For my part, I think it is the constituency itself, the American people that form that formational foundation for this and any subsequent government or society, that needs to wake up and really ask ourselves if an ignorant, ill-informed, lazy, and entitled society can (or should?) reasonably shield individual freedom from a generally intelligent, well-organized, demagogic, and highly determined statist oligarchy (of various partisan flavors).

Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow [sic] the victim of a spirit of injustice, by which he may be a gainer to-day [sic].

UPDATE (9 March 2013):

Illustrating again that government issued safety is largely an illusion, an undercover TSA inspector successfully managed to sneak a simulated improvised explosive device past two layers of security in the Newark Liberty Airport last month.  People make mistakes, to be sure, but the TSA has never been known for its proficiency (as noted above), and at any rate, such a broad, universally applied security posture is virtually assured to fail in properly identifying determined, cunning individuals beforehand.  All law enforcement is inherently reactive rather than proactive since officers cannot be everywhere at once.  The working fallacy that is the TSA is that while acknowledging that agents cannot be everywhere, the organization expects the bad guys to simply come to them – and apparently cannot even consistently identify them when they do.  Notwithstanding the unconstitutionality of the TSA, the broader practical question here is whether or not such diffusive incompetence is really worth the corresponding intrusiveness?


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