I'm Opting Out. This holiday season, won't you join me?
I'm in line with hundreds of people behind me and hundreds more ahead of me. Even at 8:30 AM, Denver International Airport is getting crowded. As I approach the conveyer belt and the ProVisionTM Millimeter Wave Check Point Screening System, I take off my shoes, jacket, and belt. I put them in a bin. Then I take my laptop out of my backpack and put it in a bin. All go on the belt to be x-rayed and scrutinized by a group of agents behind glass. A man in an official Transportation Security Administration uniform asks if I have anything on me. I tell him that I have my license and my boarding pass in my pocket and that I am opting out of going through the enclosure that takes a radio-wave image of your naked body—with your clothes on—used to highlight any threats to the security of this closed system of commerce and air travel.
The TSA agent has a head of coarse black hair with whitening sides. He wears glasses and leans over one of the glass walls corralling people toward the security screening checkpoint. He looks at me, somewhat incredulously when I tell him I'm opting out, and tells me that it's perfectly safe and that there is no radiation. I tell him I know, (even though there have been no longterm studies of the effects of the radio waves and that a scientific debate about health effects still surrounds the machines--not to mention that in 2010, the unions representing the pilots for American Airlines and US Airways recommended their pilots get pat-downs rather than body scans) and that I don't think the TSA is any kind of real security—it's false security—especially when our government continues to murder people daily overseas.
Let us not forget that it wasn't technologically sophisticated, motivated-for-no-reason, individuals who packed explosives in their shoes or on their persons to take down buildings--symbols of American global dominance--for no reason (except the stated reason that they hate us for our freedom--which is completely preposterous), but well-trained, principled, and motivated individuals who, with no more than box cutters, high-jacked four planes flying two of them into the World Trade Center and one of them into the Pentagon. A a third crashed before reaching its target in Washington, DC. It brings Margaret Mead or even Bill Maher to mind.
He tells me to step aside and wait for another male screener to pat me down. He seems annoyed. I step aside. Usually when I opt out of going through the body scanner, the TSA agent tells me it's safe and then smiles and points to where I should wait. Occasionally, I'll get a security agent who wants to tentatively feel out my politics. Once they realize I have a political point of view that differs from theirs, they retract. My interaction in Denver with this TSA agent was no different.
I watch people as they continue through the lines and through the body scanners. It reminds me of the descriptions of slaughter houses, except things aren't so grisly at the end. It's not a cruel, literal death, but perhaps a figurative death—of both the individual and the Constitution. Apparently no one has told them that this kind of imaging is akin to a strip search. In order to be strip searched, the police need reasonable suspicion. In the case of these body scanners, there is no reasonable suspicion. People go through the machines, they are mass strip searched, and in some circumstances their images end up on the internet [1, 2, 3]--because the government was storing images of individuals in direct opposition to what it told the public. Not like we haven't seen this kind of double speak before. So, aside from concerns about the lack of data looking at long-term exposure to radiation and radio waves, there is another equally unnerving issue at play: privacy.
In 2010, a case was brought by the Electronic Privacy Information Center against the TSA. EPIC “sued in the District of Columbia Circuit Court of Appeals to challenge the TSA's unilateral decision to make body scanners the primary screening technique in U.S. airports.” Three frequent air travelers added their names to the suit: security expert Bruce Schneier, human rights activist Chip Pitts, and the Council on American-Islamic Relations Legal Counsel Nadhira Al-Khalili. EPIC's suit against the TSA—a component of the Department of Homeland Security—“sought the suspension of the body scanner program, pending independent review and public notice and comment rulemaking,” based on “the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment.”
EPIC's legal arguments in the suit are awesome and deserve to be quoted fully:
In EPIC v. DHS, No. 10-1157, Petitioners argued that DHS violated the Administrative Procedure Act when it failed to act on EPIC's May 31, 2009 petition to the agency and when it refused to process of EPIC’s April 21, 2010 petition. The Administrative Procedure Act states that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. Courts have found that petitioning parties are entitled to a response on the merits.
EPIC also argued that the DHS Privacy Office failed to comply with its statutory mandate to protect travelers’ privacy. The DHS Chief Privacy Office prepared an inadequate Privacy Impact Assessment of the TSA’s body scanner test program that failed to identify numerous privacy risks to air travelers. Also, the DHS Chief Privacy Office failed to prepare any Privacy Impact Assessment concerning the TSA’s current body scanner program. The TSA’s current body scanner program is materially different from the TSA’s body scanner test program. The program erodes, and does not sustain, privacy protections relating to the use, collection, and disclosure of air traveler’s personal information.
EPIC asserted that the body scanner program violates travelers' Fourth Amendment rights. Courts have required that airport security searches be minimally intrusive, well-tailored to protect personal privacy, and neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. Searches are reasonable if they escalate in invasiveness only after a lower level of screening discloses a reason to conduct a more probing search. EPIC argues that the TSA’s body scanner program fails to meet these standards because the TSA subjects all air travelers to the most extensive, invasive search available at the outset. EPIC asserts that the TSA searches are also far more invasive than necessary to detect weapons. Alternative technologies, including passive millimeter wave scanners and automated threat detection, detect weapons with a less invasive search.
EPIC argued that the TSA’s body scanner program violates the Privacy Act because it creates a system of records containing air travelers’ personally identifiable information. The system of records is under the control of the TSA, and the TSA can retrieve information about air travelers by name or by some identifying number, symbol, or other identifying particular assigned to the individual. However, EPIC argued, the TSA failed to publish a “system of records notice” in the Federal Register, and otherwise failed to comply with its Privacy Act obligations.
EPIC asserted that the TSA’s body scanner program violates the Religious Freedom Restoration Act, which bars the government from placing a substantial burden on a person's exercise of religion even if the burden arises from a rule of general applicability unless the government demonstrates a compelling governmental interest, and uses the least restrictive means of furthering that interest. The TSA's use of body scanners violates the RFRA because the capture and transmission of naked images of individuals offends the sincerely held beliefs of Muslims and other religious groups. Muslims believe in maintaining modesty and covering their bodies. Body scanners enable the capture and viewing of naked human images that violates this belief and denies observant Muslims the opportunity to travel by plane in the United States as others are able to do.
Lastly, EPIC argued that the TSA's body scanners violate the Video Voyeurism Prevention Act of 2004, which specifically prohibits the intentional “capture [of] an image of a private area of an individual without their consent . . . under circumstances in which the individual has a reasonable expectation of privacy,” when such circumstances are known. As the documents that EPIC obtained through FOIA litigation demonstrate, the devices are specifically designed to capture such images. Furthermore, as evidenced by the ground swell of grassroots opposition, the public is clearly voicing a reasonable expectation of privacy.
On July 15, 2011, the D.C. Circuit court of appeals ruled that the TSA did, in fact, violate the Administrative Procedure Act when it failed to conduct a public notice and comment rulemaking. The Court ordered the agency to "promptly" undertake a public notice and comment rulemaking.
Because the agency failed to initiate the required notice and comment rulemaking, EPIC twice filed motions asking the Court to enforce it's own order - the first on October 28, 2011 and the second on December 23, 2011. The Court declined these motions. But after a year of agency inaction, on July 17, 2012, EPIC filed a Petition for Writ of Mandamus, asking the Court to enforce its own order and force the agency to initiate the notice and comment rulemaking process within sixty days.
In its Petition for Writ of Mandamus, EPIC cited D.C. Circuit caselaw that shows that a one year delay is unreasonable as a matter of law. EPIC also urged the Court to take into consideration the health risks presented by the machines, which weigh heavily in favor of a transparency rulemaking process which would allow for independent review and democratic process.
Along with EPIC, the American Civil Liberties Union, the National Human Rights Commission for South Korea, and Britain's Equalty and Human Rights Commission have all made strong recommendations to their governments to cease using body scanners until legal and ethical questions can be answered in ways that do not disgregard the civil and human rights of travelers.
But I digress.
The TSA agent looks at me quizzically. He's trying to figure out what I mean when I say false security. He doesn't comprehend—or at least he doesn't let on. He points to all the machines and TSA agents in the check point area and intones that this landscape of people, dividers, officials, weapons, scanners, and other technology isn't false, or fake, but real, effective security. [1, 2, 3, 4, 5] I tell him it doesn't matter as long as the government continues its global, hegemonic policies where might makes right (and committing war crimes, crimes against humanity, and over-riding international law in the norm and not the exception). He informs me that it's a post 9-11 world and things have changed, much like the way things changed during the nuclear Cold War.
Neither of us is listening. I wonder if he's a retired cop or solider. I tell him nothing will change until we stop terrorizing others. He turns away from me looking at the people walking through the body scanners. Little else is said in the exchange. I wonder as I wait to be patted down what he makes and what kind of working conditions he has. Of course, since neither of us are listening, those questions won't be posed or answered.
I am eventually taken and patted down and told I am good to go.
Now at this point, I could wax poetically about the terror caused by the United States. I could also go into an in-depth history of American exceptionalism that lead to some people pushing back. I could look at the U.S.'s definition of terrorism and then the international definition of terrorism and show that we are guilty of all kinds of horrible criminal acts that would never be tolerated if they were perpetrated on this country.
I could go in-depth about cases of people with disabilites being humiliated [1, 2], women being sexually assaulted [1, 2, 3], children being invasively touched and searched [1, 2, 3, 4], property and money being stolen [1, 2, 3, 4], racial profiling [1, 2, 3], or the new forms of seemingly innocuous conversation that suddenly turn into an interrogation [1, 2]--all perpetrated by TSA agents. I could talk about the TSA's next generation of radio wave scanners meant to hide more of the naked body images and look for anomolies; of course before you enter the chamber, the agent has to make an assumption about your gender and push the blue-for-boys button or the pink-for-girls button. Heaven help the TSA if you are a gender nonconforming individual or a transgender person! All one has to do is read the news or review the Master List of TSA Crimes and Abuses. It's pretty sickening.
No, I'm not going to go any further in drawing a picture of how out of control the TSA, the DHS, and the United State government are. Do a search; you can find out all about it. What I am going to do is ask you to resist this horrifying machine. This holiday season, if you are willing and able, ask to opt out and get patted down. Bring a camera like Carlos Miller did [1, 2] or an audio recorder and document your experience. There are horror stories and if you are getting unwarrented attention, do what is best for you. But try it out. It's easy to get frustrated in holiday traffic and pine for efficiency and swiftness. But in that longing, we're letting the government--and the corporations making a ton of money off of this technology and the legislation to mandate it--make us believe that we have no rights and that anything is reasonable in a post-9-11 world. Well, it's not reasonable and it needs to change.
See you in the opt-out line!