I am glad to see that the resistance to the TSA’s policy of pornograton-or-molestation is continuing. Jason’s recent post, and the subsequent discussion in the commentary, covers many of the issues, and there are numerous discussions around the web, most of which share the view that the policy is unjustifiable.
For my part, I think the policy is grotesque and unworthy of a free people. I made this argument some years ago—shortly after 9/11, but at a time when today’s policies still would have seemed unimaginable.
But I have a few thoughts to add to the current discussions:
First, I have to question the character and psychology of the people conducting these searches. What could bring a person to physically fondle, grope, and thus molest strangers?
How, moreover, are they getting away with it? Unless the passengers in question both consent to the pat-downs and feel as though they actually have power to say “no,” the TSA officials are engaging in what is called criminal sexual conduct, at least as defined under Title 2C of the New Jersey Code of Criminal Justice (and, I am sure, many other state codes as well). Indeed, if it involves minors, if the actor uses “physical force or coercion,” or if the actor “is armed with a weapon” (see here) it qualifies as aggravated criminal sexual conduct (see here as well). Those crimes are punishable by up to 5 years in state prison.
We presumably do not need the Nuremburg Trials or the Mai Lai Courts Marshall to remind us that “I was just following orders” does not absolve a government official from responsibility for his actions. What the TSA officials are doing does not, of course, rise to the level of those two examples. But it does seem to be clearly criminal conduct, and, especially when involving children, disgustingly criminal conduct. The fact that they are members of the federal government is irrelevant—except insofar as that means they are subject to the United States Constitution, including in particular its Fourth Amendment.
So my question remains: How are they getting away with it?
Third, Russ Roberts correctly notes that the goal of this “security theater” is not to prevent airplanes from blowing up. As he argues, if that were the goal, there are easier ways to achieve it—like banning all airplanes, for example.
Perhaps security is the goal, but there is no single optimal level of security. No one can ever be absolutely secure, so we all approach security conscious of tradeoffs and according to our schedule of preferences. Since people’s schedule of preferences vary, their tradeoff points of security vs. personal or bodily integrity will vary as well. So it might be that A wants the “enhanced” pat down to feel safe, while B does not.
Why can’t we let people choose the level of security they want? One way to do that would be to let airlines or individual airports make their own decisions about security procedures. That way we would introduce competition, and we would introduce variety to cater to people’s varied tastes. That would elminate the hamfisted one-size-fits-all policy we are currently getting from the TSA.
Fourth, the real matter at stake here is, I believe, not the isolated acts of molestation, bad as those are. It is the training in obedience to government authority that it constitutes. It habituates Americans to docile and timid subservience, which, in addition to being unworthy of a free person, is also corrosive to a free society.
And finally: What are we teaching our children when we tell them not to allow themselves to be victims, to say “no” when someone makes them uncomfortable, and that we will protect them from the unwanted advances of others . . . except when it comes from a government official?
A couple of practical problems with your idea of letting people choose the level of security they want.
Except in a very few cities there is no free market in airports. If I live in or near St. Louis then I either use Lambert field or I don’t fly. I suppose I could make the hours long drive to Chicago or KC but that seems pretty inconvenient. Needless to say, the barriers to enter the airport market are enormous.
As for the airlines going this route (assuming the gov’t would allow them to do it which isn’t going to happen) you again would face some logistics problems that would make the idea cost prohibitive. Airlines with no/lax screening would have to have their gates segregated from those with good screening. The airlines with the “good screening” stamp need an assurance that after passing through security none of their passengers can get a weapon from one of the people on “No Screen” airline. An additional issue is that the danger isn’t confined to the airline on which the terrorist is embarked as we’ve already learned so the premise kind of falls apart here.
[...] the choice between having a stranger gaze at a naked picture of you, being searched in a way that could arguably be prosecuted as aggravated criminal sexual conduct, or facing a hefty fine for leaving the security area, a lot of people are planning to opt out of [...]
For California residents, I believe we can file a complaint against the TSA based on California Civil Code Section 51.9.
Here are some highlights from this code:
(a) A person is liable in a cause of action for sexual
harassment under this section when the plaintiff proves all of the
following elements:
(1) There is a business, service, or professional relationship
between the plaintiff and defendant.
…
(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.
(3) There is an inability by the plaintiff to easily terminate the relationship.
(4) The plaintiff has suffered or will suffer economic loss or
disadvantage or personal injury, including, but not limited to,
emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).
…
Thank you, Tom. I imagine other states have similar statutes.
To Steve, the barriers to entry are significant, but not at all insurmountable. And you might be surprised to discover what kinds of complex coordination and other logistical problems people seeking a profit can overcome. The fact that you or I can’t think of ways to make such things feasible right now in no way means that others can’t or won’t.
And your point about danger not being localized to a potential terrorist’s airplane is true but irrelevant. It would apply also to cars, trucks, train stations, bus stations, malls, theaters, stadiums, etc., etc.—and I presume you aren’t advocating government molestation before anyone does any of that, right?
Jim,
I’m not advocating government molestation for any of the above OR for boarding an airplane. My comments were meant only as it pertains to the possibility of a “free market” solution to the issue at hand. I don’t think anybody should have to go through any type of search prior to boarding an aircraft unless the authorities can show probable cause, which would pretty much mean the end of any type of preflight screening.
My point was that creating a menu of security options for airlines is problematic because it’s a) impractical to build the dozens (hundreds?) of separate airports this would necessitate and b)impossible (given the parameters of the situation) to keep the choices separated. Example: If I choose to fly on “Maximum Protection Airlines” then my expectation is that this protection applies throughout my flight. If I’m flying from Baltimore through Chicago and then on to San Francisco and when I arrive at O’Hare that airport does not have a way to segregate me from those who chose to fly on “No Protection Airlines” then the choice has lost its meaning. Multiply this issue by hundreds of millions of passengers using thousands of airports and I have a hard time believing anything short of restarting the concept of air travel from scratch will work.
I don’t agree that my point of the danger not being localized to a potential terrorist’s airplane is irrelavent. Again, the point I’m contesting is that there is a free market solution which could allow each person to choose the level of protection they desire. While this might be true (in theory) for the passengers on the aircraft itself it obviously doesn’t apply at all to people who might be on the ground when a terrorist decides to blow up a plane or in a building into which the terrorist might fly the plane. It is in the interest of those people not on the flight that every flyer choose maximum protection. Who balances these choices?
Bottom line, I’m in violent agreement with you and the author of the original article that the government has gone far beyond their charter when it comes to “securing” air travel. I just don’t agree with the contention that there is a viable free market solution as envisioned here.
Fair enough, Steve. I think we’ll have to agree to disagree about whether there are market-based solutions to the obstacles you outline. I think there would be, since markets have proven remarkably able to overcome problems like economies of scale, excludability, and transaction costs in the past—even when people predicted they would be unable to do so.
My guess is that there won’t be dozens or hundreds of different levels of security demanded or offered. My guess instead is that what we would see in air travel is variations on one system, namely something much like what one gets at Ben Gurion Airport in Israel.
Well, although Ben Gurion Airport seems to be coming up a lot these days as a model for what the U.S. should be doing there are a couple of issues that its proponents need to address:
- Ben Gurion handled 11 million passengers in 2009 and is by far the largest airport in Israel. There are only a handful of other domestic airports. This wouldn’t put Ben Gurion in the top 10 in America (San Fran at 18 million is 10th). I could only find a top 10 list but clearly the scale of the airport security problem here in America is many orders of magnitude larger than that of Israel.
- Are we willing to put up with vehicle checkpoints at airport entrances with our vehicles being subject to search by armed guards simply for accessing the airport property? How about closed circuit security cameras monitoring all areas of the airport property? And these are just the obvious security measures. Who knows what kind of identity checks are being conducted on passenger lists by Israeli security officials? It seems to me we’d be simply trading one admittedly odious form of rights violation (pat downs) for a slew of others if we went to the Israeli model.
Appreciate the conversation. I enjoy the site precisely because it encourages a less hysterical tone. Keep up the good work.
[...] a lot this spring and have saved up a number of notes from the road to pass along. James Otteson, the TSA’s #1 fan, will need to put down any sharp objects before [...]