Privacy and Security

How intrusive are subway backpack searches?

Mike O’Hare writes:

For some reason I’m not much alarmed by the new intrusiveness of the police in (for example) the UK and New York, though I do find all this bag searching, street barriers, and shoe-doffing at public buildings and airports depressing and a nuisance.

I’m bemused and disheartened that the bag inspection program in New York has apparently been designed to do nothing useful. In a letter to the New York Times Aaron Kopman points out that you can refuse inspection, at which point you’re just denied admittance to the system and can go try another station or another time. Obviously a random, low-probability, program like this has to assure that if you’re inspected, you’re inspected, so carrying a bomb or some such thing has some meaningful chance of getting you in real trouble. What’s wanted is a really intrusive, Mossad-style going-through, that will find not only a bomb but a vial of sarin dressed up as a paint spray can, for a small fraction of passengers chosen by a transparently impersonal mechanism like the red light/green light machine at Mexican customs, and a nice crisp double saw for anyone so inconvenienced, along with a thank-you letter from the Mayor in several languages.

What’s actually going down in New York is nothing but eyewash and waste. I guess it’s fraud and abuse, too, a policy hat trick.

Assuming for discussion a bag inspection program that has some rational relationship of design to purpose, the idea that a stranger can look in my bag or briefcase, and that four million cameras are watching public and semi-public spaces in Britain, still doesn’t activate my civil rights gland. I suppose this may be because I have a dull life and a boring briefcase (I wonder what happens when a city bag inspector lands on a federal secret agent with really interesting but legal (for her) stuff in hand).

But I think more likely it’s because on the one hand, I don’t think I have any right at all to secretly carry bombs or poisons in public, and on the other, I think it’s fairly easy to hide personally embarrassing stuff from inspectors, for example, by putting things like joints in pockets. These inspections are about objects big enough to kill or maim a lot of people, not about switchblades. I don’t see them reading love letters, and unless I’m missing something, items like AIDS medicines or Viagra even if properly labeled, are only embarrassing if associated with my name in the consciousness of people I know.

There’s some risk that public figures’ handbag secrets will be retailed to the tabloids by inspectors, but this should be manageable by requiring the inspector to give each subject a receipt (in the form of a “thank you”) with his badge ID on it.

A tough call is inflammatory literature and, say, poison gas recipes. If the inspector finds a set of dirty bomb plans going through a bag, with or without a sermon demanding suicidal attacks on whomever, does he have the right to take id and a photo? I think so but I’m not sure about this one.

More troubling is the bong, weed, and other incriminating accidental find. I think it’s imperative to restrict these searches to stuff that could be used for a terrorist crime on the spot and to assure that anything else that turns up is not grounds for arrest or even further investigation: if the bag searcher tips the regular station cop with a wink or nod, it’s all fruit of the poisoned tree (inadmissible) and grounds for discipline of the bag inspector. Of course there’s no right to demand identification from anyone unless the search reveals terrorist apparatus; no picking up illegal aliens this way.

The other serious concern is abuse for revenge, personal vendettas, or blackmail. I guess there’s no airtight assurance against this, but we have all sorts of government programs that run this risk because we think it can be suppressed by good administration and because they are worth it, like the income tax. Is this worth it?

I think the risk of being caught with your bomb in random checks, if the checks are reasonably frequent (say, one passenger in a thousand stopped) and visible, would be quite discouraging to subway terrorists, but I could be wrong. We need some serious data-based analysis here.

The cameras (and the poor bored-stiff schlep watching the monitor in some basement room) are doing what everyone else on the tube station who’s there live is doing, namely looking at and past you with no particular interest, unless you do something interesting. Here effective privacy is assured by dilution among the zillions of hours of tape that will only be actually watched if an event justifies it.

Contrast this with the illicit couple at the ball game nationally televised in closeup by ESPN’s crowd-reaction camera. Live streaming web cams of public places may be not such a great idea: I’m willing to take my chances, or not, doing something embarrassing in front of the people I see seeing me, but knowing I’m doing it for anyone anywhere who wants to look changes the calculation substantially and feels unfairly intrusive. I think I do have a legal right to meet a recruiter from a competitor of my company for a chat in Union Square on the strength of my personal reconnaissance of my literal surroundings and the people in them.

The privacy issue seems to turn on a distinction between two kinds of information that bag searches or CCTVs communicate to at least someone. The first is information germane to public safety and the public’s sense of safety (bombs, post-facto video of perps exchanging backpacks in a station, etc); the second is information you don’t want at least some people to know and that you have a citizen’s right (if not a personal relations right) to withhold from them (health status, weird but harmless habits, infidelities). If you search my bag and find my bomb, I’ll be Really, Really Angry but I wouldn’t expect anyone to feel sorry for me. If your justified snooping puts my humiliating secrets before someone I don’t know who doesn’t know my name, I maybe should feel outrage but I don’t, on reflection; I don’t think I care at all that someone knows that someone had dirty pictures in a briefcase at 51st Street this morning. Some clerk at Amazon.com knows about everything I read, and my name too, but that’s never troubled me much.

If you bust me in front of people whose opinions I care about, it’s a bad thing, but I think the snooping we’re doing so far can be managed to be (or is intrinsically) a minor risk on this ground.

Note that the legal rule Mike proposes — anti-terrorist searches are for terrorist-related offenses only — isn’t the rule actually in place. Lots and lots of people are caught with drugs, and smaller amounts with incriminating amounts of cash, at airport security checkpoints, and the results of those searches are completely admissible in court. The general idea is that if a search is lawful, it’s lawful for all purposes.

Mike could be right that a 1-in-1000 chance of being caught would serve as a deterrent, but I’m not sure why it should. Presumably the other risks involved in putting a bomb in the subway would be substantially greater. The risks to terrorists could be increased, within any given budget of total inspections, by focusing on young men of Middle Eastern appeareance. If the process were polite enough, and the payment for the inconvenience the $20 Mike suggests, that might be made to seem an acceptable deal.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com