Airport Body Scanner Update: DHS Answers EPIC, Nader/Paul, and Alternatives

I'm going to quickly rehash some of the reasons why these airport body scanners are wrongheaded before I get to the latest information coming out of the lawsuit filed by The Electronic Privacy Information Center (EPIC) against them. For a more comprehensive detailing, you can always check out my article published in the California Progress Report about seven weeks ago entitled "A Hobson's Holiday Travel Choice: Digital Strip Search or Get Groped."

Ensuring Compliance: The Opt-Out “Choice”

For those that feel uncomfortable being viewed nude by Transportation Security Administration (TSA) agents, we’ve been told we can always opt-out. But this “choice” only leads to yet another violation of privacy: a policy of more aggressive “pat downs”. The message being sent is a clear one: DON'T OPT OUT.

This dual privacy intrusion has sparked an intensifying public backlash, including: An airline pilot refused to be subjected to these scanners and subsequently sued the airline for not allowing him to work, the world’s largest pilot’s association boycotted the machines over health risks posed by the low level radiation they emit, a man video taped his experience being thrown out of an airport after refusing to submit to a "groin" check pat down (and now he’s being threatened with a $10,000 fine and a civil suit for leaving the airport), a national opt-out day took place on November 24th, and a lawsuit (six actually) against the Department of Homeland Security was filed by EPIC (to name just a few).

Airport Body Scanners: Key Points of Concern

Opposition to these scanners and the accompanying aggressive pat downs has centered on the following key concerns:

• Being forced to be either viewed naked or aggressively searched just to travel is a gross violation of privacy. Despite TSA claims to the contrary, documents obtained from the Department of Homeland Security by The Electronic Privacy Information Center (EPIC) show the machines being used at some U.S. airports CAN record and store passenger images. If these photos weren't being stored, why do so many keep popping up on the internet?

• These scanners don’t make us safer. For every specific tactic we target with a new, expensive, and often burdensome security apparatus, the terrorist's tactics themselves will change. Risks can be reduced for a given target, but not eliminated. Additionally, a host of security experts assert the money spent on these scanners could be used for infinitely more effective security measures. It should also be noted that these scanners can’t detect explosives inserted into the body, in something like a reinforced condom that could be passed and then detonated. In fact, most agree that the scanners would NOT have helped catch the UNSUCCESSFUL attack attempt by the “underwear bomber” last year (a claim constantly made by scanner advocates). Also, let's remember the age of this technology itself: 20 years!! One of the key talking points repeated, over and over, by machine proponents is that these somehow represent "cutting edge" technology that is critical in keeping us safe. ha!

• The threat of being killed in an airplane by a terrorist is minuscule. Before we willfully give up our civil liberties and sign off on wasting HUGE amounts of money on ineffectual security systems, consider this: your chances of getting hit by lightning in one year is 500,000 to 1 while the odds you'll be killed by a terrorist on a plane (if you are a constant flyer over a 10 year period) is 10 million to 1.

• The Security Technologies Industry is big business now - with powerful "friends" in high places. In fact, the former head of the Department of Homeland Security (DHS) – Michael Chertoff - currently lobbies for a body scanner manufacturer. This multi-billion dollar industry contributes large sums of money to elected officials; and at nearly $200,000 per scanner – its taxpayers who will be left holding the bill.

• Scientists and airline pilots have raised concerns regarding the potential health risks associated with the radiation these machines emit. Some have argued that the radiation levels have been dangerously underestimated by the government and could lead to an increased risk of skin cancer.

• Where does it end!!? At what point are we going to stop taking out insane plots that don't work on American citizens trying to travel? No shoes, no liquids, not nail cutters, long lines, and the list simply goes and on. At what point does this growing surveillance state begin to stifle freedom and even dissent (think street corner cameras, wiretapping, RFID tags on clothes and kids, behavioral tracking, GPS tracking, etc.) to such a degree that we lose what made America ostensibly "special"?

Security versus Privacy: A False Choice

Choosing between being digitally strip searched, or aggressively felt up simply to get on a plane is no choice at all. As noted privacy and security expert Bruce Schneier recently stated, "If you set up the false dichotomy, of course people will choose security over privacy -- especially if you scare them first. But it's still a false dichotomy. There is no security without privacy. And liberty requires both security and privacy. The famous quote attributed to Benjamin Franklin reads: "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." It's also true that those who would give up privacy for security are likely to end up with neither."

DHS Answers (finally) Charges Filed by EPIC

With that quick summary, let's get to the progress of EPIC's lawsuit against DHS. The article from NetworkWorld entitled "The Stripping of Freedom: EPIC vs. DHS on TSA Body Scanners", lays out the latest:

The Department Of Homeland Security finally filed an its answer brief in EPIC's suit to suspend TSA's controversial airport body scanner program. The Electronic Privacy Information Center (EPIC) argued that body scanners are "unlawful, invasive, and ineffective," but DHS responded that EPIC's claims are "unfounded" and "meritless."

The EPIC opening brief [PDF] outlined several violations and asked the Court to halt all use of DHS naked body scanners. EPIC brought claims under the Fourth Amendment, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.

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EPIC was fast to file a reply brief. In regards to opting out, EPIC wrote, "Moreover, when travelers select the patdown, they often describe it as 'coercive' or 'retaliatory.' This EPIC [PDF] might be worth your time to read, as EPIC states how DHS "action has violated, and continues to violate, the constitutional and statutory rights of American air travelers."

Also of interest to me personally was the TSA's claim that the holiday travel season produced an "outpouring of public support" for the dual scan, pat down policy. Now, while I have been clear in admitting that the Opt-Out day organized by opponents of these new procedures wasn't some rousing success, to claim that the travel season represented an outpouring of support is patently absurd. Let's remember some key factors in WHY there was little confrontation over the holidays, particularly over Thanksgiving:

• Only a small percentage of passengers are actually asked to go through the digital strip search machines.
  
• The vast majority of airports still aren't equipped with them.
  
• When people are traveling on the holidays (or any time for that matter) its very difficult to get them to willingly delay their own trip...or be blamed for delaying others.
• What the TSA failed to mention is how many passengers actually were asked to go through the scanners, and how many of those opted-out. Yes, they reported the number of opt-outs at airports, but they've been contrasting that with the total number of those that flew.
• Also not reported is how many passengers flew over the holidays versus the past, and whether any decline might be due to people "opting out" of flying altogether. Six, it turns out the machines weren't labeled as "body scanners," nor were there any images posted by or on them showing what they do.
• When the TSA reports 99 percent of travelers consented to the body scanners, that consent was neither verbal nor written (in other words, nobody will ask you if it's okay). It was presumed so if you walk into the machine without objecting. So no "opt-out" choices were presented. In other words, to opt out, a traveler would have to realize he was being directed into a body scanner, understand that he had a choice, and stop and speak up to a TSA agent.
• As reported in Rawstory, many airport imaging scanners were reportedly shut down and roped off on November 24th, the day of a planned "opt out protest.
  

The Opponents Odd Couple: Ralph Nader and Ron Paul

Now let me get to an interesting pair of increasingly outspoken opponents to the TSA's practices that, literally, span the ideological spectrum. One one side we have Ralph Nader, on the other, Rep. Ron Paul. While my politics are far closer to those of Ralph Nader, on issues related to privacy and foreign policy, Paul has been a commendable and consistent voice.

But let me get to Ralph Nader's recent statements on this subject, ones I find particularly enlightening. He said that "the body scans and enhanced security pat-downs at US airports are eating away at Americans' freedoms…The TSA security strategy was to have a knee-jerk reaction to failed terror attacks." Recently he also stated:

"You have the shoe bomber, we take off our shoes. You have the Christmas bomber headed for Detroit who failed, so now we have these new scanner machines," he said, referring to a young Nigerian who tried unsuccessfully to detonate explosives sewn into his underpants as his US-bound flight was about to land on Christmas Day, 2009. "Next thing American travelers know, they will be subjected to body cavity searches. What's happening is, we are incrementally losing our freedoms."

At the same privacy gathering that Nader was quoted as, international security expert Edward Luttwak reminded attendees that in a test conducted in Europe, German prison guards were instructed to sneak explosives past three different scanners, including the full-body X-ray machine currently causing such a furore in the United States. Luttwak, a senior associate at the Center for International and Strategic Studies, said:

"They did it with such ease that the Air Travel Association, IATA, said there is no case for scanners. The better solution would be to use data that is available to the travel industry to identify and separate frequent fliers and other travelers who are unlikely to be terrorist wannabes from travelers who, for whatever reason, arouse suspicion. Then, only screen suspect travelers. "The guy who has traveled 50 times in the last 50 weeks without blowing up an airplane is unlikely to become a terrorist the 51st time. This sort of screening method is already used successfully at airports around the world, including in high-risk countries like Israel.

If the TSA were to switch to it, they would not only save travelers a lot of time and headaches, but would also reduce the security risk that has been created at US departure terminals by long, slow-moving lines of passengers waiting to clear security."

While I still believe the more important problem with these machines/pat downs is their intrusiveness, and the fact that they are based on an almost non-existent threat, I also realize that the fact they don't work could be our ace in the hole in the long run. For that reason, I will continue to hone in on that fact, and the growing evidence supporting it, in future posts (in addition of course to our growing surveillance state).

Sadly, though one would think that knowing all that we do about these machines and increasingly intrusive surveillance tactics, and the slippery slope they represent, we wouldn’t be talking about expanding it into other modes of transportation. But that's exactly what we're going to do...call it a kind of totalitarianism creep...

There’s this from “John Sammon, TSA assistant administrator, Transportation Sector Network Management”: “It is critical that we continue to expand and exercise our collective ability…Today’s event offers the opportunity to demonstrate in dramatic fashion the force potential and security enhancement value of regional collaboration as TSA joins its professional colleagues throughout the Northeast to … provide a highly visible security presence during rush hour.”

Just as it owns Amtrak, government owns all the trains underground, too. As such, the new head of the Transportation Security Administration, John Pistole, told the USA Today, “Given the list of threats on subways and rails over the last six years going on seven years, we know that some terrorist groups see rail and subways as being more vulnerable because there’s not the type of screening that you find in aviation.... From my perspective, that is an equally important threat area.”

Meanwhile, TSA also has said they’d like to expand this Visible Intermodal Prevention and Response (VIPR) concept beyond the rail sector to other forms of mass transit.

Taking the bus instead of trains won’t protect you from the TSA either, as “Bryce Williams and 689 other passengers” in Orlando discovered on October 22, 2009. They “went through tougher-than-normal security procedures … as part of a random check coordinated by the U.S. Transportation Security Administration,” according to the Orlando Sentinel. “[Fifty] officials from agencies including TSA, Orlando police, the Orange County Sheriff’s Office, and U.S. Customs and Border Protection patted down passengers.” VIPR has also pummeled Greyhound’s terminal in Memphis, as well as the city’s light rail on November 30, 2009; ditto for Charlotte, North Carolina, on May 28, 2008, Tampa, Florida, on February 16, 2010 — the list continues ad nauseam.

The TSA often describes these raids as “augment[ing] normal transportation security operations.”

I suppose if there's one positive aspect of the GOP taking control of the House (out of 10000 horrific things), its Ron Paul's increasing power on issues like this (on a lot of other issues he's terrible of course). Of course, his GOP brethren tend to be ardent PROPONENTS of exactly the kinds of authoritarian policies he abhors. However, because a Democrat is in the White House, a black one at that, I suspect more Republicans than might be expected could turn on this issue for no other reason than to score political points. Paul recently stated the following:

“We need look no further than the grossly unconstitutional and immoral policies of the Transportation Security Administration, demanding that we either be irradiated or fondled to travel in our own country, to see that those who would deprive us of our civil liberties on the empty promise of full security will not be given up easily.

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We must not allow the out-of-control Department of Homeland Security to impose an East-German like police state in the U.S. where neighbors are encouraged by Big Brother or Big Sister to inform on their neighbors. We must not accept that government authorities should hector us via television screens as we go about our private lives like we are living in Orwell's 1984.

I'm optimistic that the incoming members of Congress understand the importance of what they have been entrusted with by the American people. But I do hope that those who elected them will watch their actions and their votes in Congress carefully. An early indication will be the upcoming vote on re-authorization of the anti-American PATRIOT Act. Defeating once-and-for-all this police state legislation will be a great way to start 2011 and the 112th Congress.

Alternatives to the War on Terror

As I have written numerous times before, and what so many of the Wikileaks cable proves beyond any reasonable doubt, is that if we really want to reduce the threat of terrorism we should stop participating in it in country's like Iraq, Afghanistan, Pakistan and Yemen.

A few alternative tactics to consider: stop bombing and occupying Muslim nations, arming their enemies, torturing and indefinitely jailing their people, and supporting ruthless dictators in their countries. That's not to say ANY TERRORIST act is justified, because none are, be they perpetrated by Americans or any other people.

With the repeal of Don't Ask Don't Tell, we can at least start reinstating all the gay Arabic translators (which we have a critical shortage of today) we expelled from the military due to their sexual preference (in fact all gays that were expelled). And, perhaps, we can start shifting our focus on intelligence gathering rather than warmaking to catch the real extremists that want to do our country harm.

And if all that's not enough, check out this list of airport security methods that WOULD make us safer, don't cost NEARLY as much, and don't include being groped or digitally strip searched.