Back to the Salt Mines
Sometimes, we only know by looking back that we lived through an historical moment; the significance of events as they unfold isn't seen and connections that later seem plainly obvious aren't at the moment. This is not one of those times.
I was reminded of this earlier this week, when I walked down the steps to the Wall Street subway station and was greeted (politely) by a police officer asking me if I would consent to having my briefcase searched. As you may or may not know, New York City police have begun random searches of subway riders in response to the July 7 subway and bus bombings in London. Riders may refuse to have their bags searched, but if they refuse, they will be prevented from entering the subway. There is, so we are told, no penalty for refusing a search beyond the inconvenience of finding an alternative form of transportation -- including, ironically, buses, whose riders are not subject to search under this policy.
So there I was, confronting a constitutional moment all my own. On the one hand, the Fourth Amendment to the Constitution prohibits, in black and white, unreasonable searches and seizures: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." Based only on a Scalia-esque plain reading of the text, it would seem, therefore, that in order for a police search to be lawful, it would have to be "reasonable". On this much, the Constitutional text seems clear.
On the other hand, what is "reasonable"? Does it refer the scope and method of search -- that is, a search conducted in an unreasonable manner? Or does it refer to "unjustified" searches -- that is, a search conducted without adequate reason to suspect it will yield evidence of wrongdoing? And what about the circumstances surrounding the search -- does it matter how the police act before the search or what the punishment is if you will not consent to a search? On these points, the Constitution is less clear. But based on the remaining portion of the Fourth Amendment (preventing warrants from issuing except where there is "probable cause"), and based on the abuses committed by the British in the waning days of the Colonies, I think that the concern was not primarily with the method of search, and more with the fact that searches often lacked justification (they were intended to harass and intimidate opponents of the Crown).
In any event, a number of thoughts went through my head in the split second that I had to decide what I would do.
One was that on a gut level, the searches don't seem reasonable; they're more about the appearance of security than actual security. For example, there is no conclusive evidence that the bombers in London were suicide bombers (for more on this, I recommend a recent article in The American Prospect [link]) and therefore I find it doubtful that periodic random searches at a handful of subway stations will prevent bombings, either suicide or otherwise -- the system is simply too porous to secure from someone intent on bombing it, and while random searches might catch unwitting mules (people carrying bombs without knowing it), mules are, by definition expendable, and therefore the prospect that a mule is caught wouldn't seriously deter a non-suicide bomber. Further, let's suppose you are a suicide bomber and the police ask you to consent to a search. Are you going to say yes? More likely, you'll leave and find another place to enter the system, or maybe you'll get on an unsecured bus and blow that up instead. Or maybe, when confronted, you'll blow yourself up at the entrance to the subway, next to the police officer who asked you to consent to a search and the tens or hundreds of other people entering the subway at that location at that moment. Maybe it's me, but the notion of random searches doesn't seem particularly well-suited to the task of securing the subways. So much for the notion that these searches are reasonable tailored to meet a specific (if amorphous) threat. If anything, searches conducted in this manner might be making us less secure.
But if they're not reasonably calculated to meet a threat, are the searches "reasonable" on some other grounds? Here, the argument is that the searches aren't particularly intrusive, so what's the harm? On this point, I admit to some inconsistency: after all, where I work, I regularly walk through a magnetometer (metal detector) and consent to having my bags and possession x-rayed as a condition of employment. I also travel fairly frequently by airplane, where I similarly consent to be searched as a condition of travel. If I don't object to those searches, why do I object to this one?
One answer is the randomness -- when I travel by air, or when I go to work, I know that I will be searched, and therefore I can decide whether I want to carry a particular object that is non-threatening, but nevertheless private. With the subway searches, I am deprived of that choice -- if I am carrying an object I wish to keep private (assuming it's not illegal), but need to ride the subway, I have to choose between freedom of travel, and freedom from unreasonable search. Put another way, if I want to avoid being publicly embarrased by a search, I must now always alter my behavior in case I am randomly searched. It seems to me that if I am always having to look over my shoulder (metaphorically, that is), the protections embodied in the Fourth Amendment begin to fade just a little.
But another, and perhaps more pragmatic, answer is the value of what is being traded and received -- my privacy for a modicum of actual physical security. At airports, and at my office, there are only a limited number of physical access points and each of those is heavily scrutinized for potential terrorists. Thus, the sacrificing some amount of privacy, which I value fairly highly, is matched by a fairly high degree of confidence that the search will substantially reduce the likelihood of a suicide or other kind of bomber attacking. But as I described above, I have no such confidence in the ability of the police to adequately secure the subway -- there are simply too many access points, not enough police, and therefore, practically speaking, no measureable enhancements in my security resulting from these random searches that would justify the high cost of sacrificing my personal right to privacy. Benjamin Franklin said that those who would sacrifice fundamental liberties for a modicum of security deserve neither liberty nor security, but I think ol' Ben overstated the case: a fundamental tenet of the social compact between a sovereign and the ruled is that the people must sacrifice some amount their personal liberties in order for the sovereign to provide for some amount of physical security and order. Too much sacrifice leads to tyranny; too little leads to anarchy. The trick is to find the balance, where the liberty voluntarily relinquished is roughly equal to the security provided. And so, while I am willing at various times of the day and on vacations to trade personal liberty for actual security, it does not follow that I'll make the same sacrifice for nothing significant in return.
A second thought that went through my head is a quote that Martin Luther King may or may not have said in this form: "I believe in the beauty and majesty of the law so much that if I believe that a law is wrong, I am willing to go to jail and stay there until it is made right". (I got this formulation of the quote from my wife; a Google search of the phrase yielded no results, although a subsequent search revealed a quote by Dr. King that expresses exactly that point:
"I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.
" [link]).
Simply put, somebody has to arouse the conscience of the community. Should it be me? Would it be political cowardice not to object and meekly submit to a search? Was there a form of civil disobedience I could engage in short of asking to be arrested?
In case you're wondering, I didn't invite them to arrest me, and I didn't leave the subway (I was late getting home, and really needed to catch a train). Surely, I would have made a great poster child for the cause however -- Wall Street lawyer with young child, Caucasian, clearly not carrying anything remotely threatening, connected to people who could easily bail me out and who would probably defend me for free -- but I don't know if that's what is needed exactly at this moment. After all, the ACLU and the New York Civil Liberties Union, and probably dozens of other organizations, are already on the case, so getting myself arrested would not necessarily "arouse the conscience", as Dr. King put it.
I'm not real happy with what I did do; in retrospect, I should have left the subway and found another way home. Instead, I announced, loudly but politely, that I would comply with their request, but that I strenuously objected to the violation of my civil rights. I don't know how much of an impact I made. Perhaps I gave someone around me something to think about, or perhaps I empowered someone else who was wavering on principle, to leave the subway. Or maybe I did nothing but make an ass of myself.
In the end, it's hard to say. I just think that in these times when the police in London gun down an innocent person, and it doesn't cause outrage, or when no one seems incensed that innocent tourists on a Grey Line double-decker bus are made to put their hands over their heads and submit (involuntarily) to searches by police with M-16s merely because some of the passengers "looked suspicious" (they weren't), or when people mutely submit to random searches by the police in the hopes of gaining some fleeting and ephemeral "security", perhaps we need to start asking the hard questions. If we don't, I don't where it all stops.
On second thought, maybe we do need to start getting ourselves arrested.
posted by Daniel at 6:42 PM
4 Comments:
Friday August 19th, 2005, 9:12 AM
NEW YORK (AP) - A large majority of the city's registered voters support random bag searches of bus and subway passengers, according to a poll released Friday.
In a Quinnipiac University survey of 1,601 voters, 72 percent favored the searches while 25 percent opposed them. Support was solid among blacks, whites and Hispanics.
Random searches of packages and backpacks carried by people entering city subways began last month in the wake of the bomb attacks in London subways.
The searches have raised some questions about civil liberties, and most of those polled, 55 percent to 38 percent, said government security measures should not violate basic civil rights.
The 255 who considered themselves Republicans were an exception, with 60 percent of them agreeing that the government should take "all steps necessary to prevent additional acts of terrorism in the United States even if it means your basic civil liberties would be violated."
The 854 who consider themselves Democrats were 62 percent to 32 percent against that proposition. Independents also rejected violations of civil liberties, 54-39 percent.
"Even in a city touchy about civil rights, New Yorkers pick a bag search over the threat of being blown up," said Quinnipiac polling director Maurice Carroll. "But most voters don't want to give government too much power."
The people answering this survey strike me as confused. The want the searches but they fear the government's power increasing. They want the searches but not do not want violations of fundamental civil liberties. So they must think you can have one without the other.
Now, fundamental civil liberties are not proper subjects of democratic votes. The fact that a large majority wants the procedure doesn't constitutionally justify it. In fact the stronger the majority pushing an oppressive policy, the stronger must be the safeguards for the targets of that policy.
Yet I think the game was given up 30 years ago or more, when airline passengers began to be search to prevet hijacking. The concepts of probable cause and reasonable suspicion were thrown out the window. I remember being shocked at the time, but getting numb to it after a while. The tradeoffs you mention between curtailing the 4th amendment and effectiveness are not relevant from a Constitutional point of view, but maybe that makes me a Scalian fundamentalist.
In Solzhenitsn's book the First Circle, he recounts the shock an engineer went through when he was asked to design an automatic camera that would photograph everyone who passed through a certain door, and how he wound up in prison for refusing. He writes about something that to him was self-evidently horrible. We are no longer so horrified by surveillance cameras.
Where does it end? With the death of privacy as we have known it, and not just in the name of security, but also for marketing, social reseach, the convenience of things like Tivo and E-Z Pass. Because we have cheap, powerful technology, we are going to be more and more thoroughly recorded. I've seen this coming for a long time, and maybe that's why it doesn't bother me to be part of a vast pool of data, that, ultimatel, anybody who really wants to can look at. I have never valued privacy very much. Let those who do value it, defend it.
The tradeoffs you mention between curtailing the 4th amendment and effectiveness are not relevant from a Constitutional point of view, but maybe that makes me a Scalian fundamentalist.
You may or may not be a Scalian fundamentalist, but I don't agree that the tradeoff analysis is irrelevant. The Constitution prohibits unreasonable searches and seizures. But since there's no definition of what is reasonable or unreasonable, we necessarily have to turn to some extra-Constitutional source to define it. I'm not suggesting that the tradeoffs I identified are the right ones, but we need to have something...
. . .
Where does it end? With the death of privacy as we have known it, and not just in the name of security, but also for marketing, social reseach, the convenience of things like Tivo and E-Z Pass. Because we have cheap, powerful technology, we are going to be more and more thoroughly recorded. I've seen this coming for a long time, and maybe that's why it doesn't bother me to be part of a vast pool of data, that, ultimatel, anybody who really wants to can look at. I have never valued privacy very much. Let those who do value it, defend it.
I realize that privacy is for sale, and I suspect that we won't appreciate what we've given up until it's gone, but that's different from giving up privacy to government. As annoying as marketers might be, they can't throw me in jail or take away my rights. So while I sometimes (though not religiously) take steps to protect my identity and preferences in commercial situations, I am more concerned about it in governmental dealings. Hence my post.
I'm not sure that the distinction between governmental and non-governmental intrusion on privacy cuts across the issue in the right way. For example, would you favor strict government provided protection of the privacy on your medical records, or would you prefer easily accessible medical information about you being available to just about anybody if you were in an emergency medical situation where time is the most important consideration? I think it came out in the course of the 9/11 Commission hearings that there were rules restricting government employee's access to publicly available databases. Does it really make sense that a private company can compile and use data about you that the government is forbidden to use?
I suppose it might make sense because the government has such greater power to harm us than any private concern. Yet, to the extent that government represents us more comprehensively than any private concern, it arguably has a prima facie claim to more leeway in keeping tabs on us. Makes some sense, but it's not the Constitutional way: limits on the federal government is what the Bill of Rights is mostly about.
...would you favor strict government provided protection of the privacy on your medical records, or would you prefer easily accessible medical information about you being available to just about anybody if you were in an emergency medical situation where time is the most important consideration?
Your point goes back to the question of defining what is "reasonable". Fortunately, the Constitution does not require such rigid lines as you are suggesting. In the context of searches, for example, the government may conduct a search pursuant to a validly-issued warrant. Courts have interpreted this warrant requirement flexibly so that, for example, a warrant may not be required where there are exigent circumstances that require immediate entry. The classic example of this is the drug dealer flushing his stash down the toilet -- the police don't need to wait to get a search warrant, since if they did, the evidence of the crime would be gone by the time they got it. Similarly, no warrant is required for so-called "searches incident to arrest", where the suspect is searched for weapons or contraband that might be on his person or within his immediate "wingspan".
Thus, in the example you cite, I would support a government protection of my medical records, with an "exigent circumstances" exception for emergency care situations. And, if there were probable cause (a determination that should be made by a disinterested party), I wouldn't object to government investigators combing commercial databases for terrorists, either. The problem I have is unfettered and unsupervised government snooping, particularly when it is not narrowly targeted at reducing a real or perceived threat.
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