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Friday, July 22, 2005

"Random" Searches in the New York City Subways

While I hate to distract from the confirmation hubhub, I thought I'd see what people think about the NYPD's new policy of searching subway riders absent individualized suspicion.

The NYPD has begun searching straphangers' bags without any specific basis for believing them to be terrorists. The policy combines random checks (e.g., every tenth rider) with checks of those who are actually suspicuous (e.g., a bag with protruding wires and an accompanying ticking noise).

Naturally, I'm against the policy. It smacks of selling our rights for the illusion of safety. [Insert your favorite Ben Frankin quotation here.] Of course the NYPD defends the policy on the usual grounds: "The public understands we live in changed times," said the Commissioner.

So the age-old question returns. How much liberty are we surrendering, and for what benefit? The liberty interest seems pretty big to me. For many New Yorkers, the subway is the only way to get to and from work. It's the only practical way to visit much of the city. Therefore, anyone who cannot afford regular taxi fare now implicitly has no right to be free of searches of his person and effects.

The benefit is close to zero. Yes, we may deter a would-be subway bomber. But he can always blow up a nearby Starbucks and kill just as many people. It's like "the Club," which does not deter car theft but merely moves it from Clubbed cars to others. (And a murderer can of course blow up the checkpoint itself, like people do in Iraq and Israel, thereby turning a safety device into a death trap.)

The NYCLU has said it will likely sue. I think it should win.

P.S. Another interesting case is the right to travel anonymously on airplanes. See more here about a case in the Northern District of California challenging FAA requirements that air travellers show ID.

10 Comments:

Blogger Res Ipsa said...

I do not oppose the random search policy for several reasons. First, even though it may not be as effective in preventing terrorist attacks on the subways as setting up airport-style security checks at each turnstile would be, it is really the only practical security response to the wave of attacks in London. The odds of catching a would-be terrorist through a random check are small indeed, but isn't it better than doing nothing?

Second, randomizing the search is really the only practical way to go about the search without descending into some form of racial/religious profiling. Even with the "random" search, some racial profiling will undoubtedly occur anyway, but it doesn't seem as onerous when everyone has a chance at being searched.

Third, the public reaction seems to support it, and in a democracy, that ought to count for something. Only the usual suspects (civil liberty groups, etc.) are vocalizing against it. Perhaps this is because, since most people can't avoid using public transit, everyone feels vulnerable and wants at least something to be done - even if it only gives a false veneer of security to their subway ride.

We certainly are giving up the right to be free from a search, but in this kind of battle, it's really the only thing we can do. And rest assured that the taxi riders have been giving up their right to be free from searches for awhile, or at least will have to give it up soon - after all, vehicles were checked at airports following September 11, and I'm sure it won't take long to set up checkpoints at crucial locations as soon as a suicide taxi blows up somewhere.

I confess that random makes me uneasy from a civil liberties perspective - but I'm at a loss as to what other steps could possibly be taken in a city like New York. If you have any suggestions about how a city like New York should respond to this kind of a threat other than random searches, I would love to hear them.

9:26 PM  
Blogger Jabotinsky said...

"The odds of catching a would-be terrorist through a random check are small indeed, but isn't it better than doing nothing?"

And thus we surrender individual rights, not to thugs with tanks but to vague fear and "what's your solution" despair.

A random check might be more effective than doing nothing, but that is not the test. The test is whether the alleged benefit sufficiently outweighs the cost of violating my right to be free of unreasonable searches.

No, I do not have a solution to subway attacks. I also cannot cure AIDS, which will kill many more Londoners this year than will subway bombers. In this country, however, we cannot force everyone to take an AIDS test so that we can alert the public to the dangers of sleeping with the infected. It might reduce the spread of AIDS, but that is not enough.

As the democracy argument: It's got nothing. The whole point of constitutional courts is to tell the people's representatives when they go over the line. The people might favor, say, segregated schools, or the death penalty for juvenile offenders, or the prosecution of homosexuals, or the imposition of Supreme Court review despite an adequate and independent state ground for upholding a decision. We appoint and confirm the judges to say No. Saying Yes is easy, especially when we're all afraid of mad bombers.

5:50 PM  
Blogger Res Ipsa said...

The fourth amendment provides that "The right of the people to be secure in their persons...against unreasonable searches...shall not be violated..." I guess I just don't think random bag searches on the subway is unreasonable as a safety precaution, since it is the only thing that can be done to address a threat (unlike the AIDS epidemic, where it seems very unreasonable to require every person to submit to a blood test since many other methods could be used to stop the disease).

The democracy argument gets me further traction than you think - of course, the majority can't simply dictate to the minority in violation of constitutionally protected rights (such as segregated schools); my argument is more nuanced than that. My point is that the public reaction, mild as it is, probably indicates the reasonability of the searches.

One final point: more damage would be done to the nation if the NYC subway was bombed than the loss of life, and that extra "terror" damage needs to be factored into the reasonableness of the search.

9:34 PM  
Blogger T. More said...

Jabotinsky,

I'm inclined to agree with you here about the likely utility of these random bag checks, and in principle, given that the subway is the mainstay of some people's personal travel here, on the privacy issue.

But is there any clear precedent for calling these searches unconstitutional? I'm just not very familiar with this area of the law. While I don't think the searches are wise, and I never leave for work early enough that I would like the delay of being searched, I'm not sure I could mount a successful legal argument against them.

T.

10:20 AM  
Blogger Jabotinsky said...

T.,

The main case on point is City of Indianapolis v. Edmond, 531 U.S. 32 (2000), in which the Court struck down random stops of highway drivers aimed at catching drug dealers.

The Court distinguished prior cases allowing random checks at the borders (for illegal immigrants) and on the roads (for drunk drivers).

According to the 6-3 O'Connor opinion, a random stop is okay as long as the purpose of the stop tied to the place of the stop (e.g., Illegals:Border :: Drunks:Highway). Here, detecting drugs was just a general crime control goal.

The Court noted that the "Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route."

So the question becomes: Is terrorism (a) like other crimes, meaning that absent suspicion of a particular imminent attack, general searches are forbidden, or is it (b) like immigration, in that it's tied to a particular place (i.e., a likely target such as the NYC subway)?

The problem with (b) is that we then have this formula:

1) Government says, "Terrorists might attack Place X."

2) Government then conducts random searches at Place X.

3) ACLU complains.

4) Court: "Well, this isn't random; it's an effort to stop dangerous activity tied to the place."

5) Government says, "Terrorists might attack Place Y."

P.S. Res Ipsa: I take your point on the lack of complaint implying reasonableness. But the people are afraid; London has two days of attacks this month. If we allow the searches now while people do not complain, we can never unallow them.

7:49 PM  
Blogger PG said...

The "right to travel anonymously on airplanes" strikes me as deeply silly. One can claim a taxpayer's right to travel on a road or in a publicly-funded subway, perhaps, but even then certain regulations apply. Many more now to the NY subway, in fact, including the lost "right" to bring open containers of food and drink. If you need to travel around the country and don't wish to be identified, you can use a car. (Unless you're going to Hawaii, I suppose.) Or you can fly your own plane. Even without the FAA regulation, commercial airlines most likely would continue to ID passengers just b/c that's become the safety norm now and the anonymous traveler airline would become identified as Air Terrorism.

12:32 PM  
Blogger Jabotinsky said...

Not to be a conspiracist, but I'm starting to suspect that PG is a secret agent of the Big-Airline Mafia (BAM!).

The airlines had been lobbying Congress and the FAA for years to impose a federal ID requirement on commercial air travellers because this would help the airlines maintain their bizarre ticketing practices, under which people pay different prices for adjoining seats on BAM! flights. For years (before the ID requirement), people used to post classified ads such as "ticket avail to BOS Sat. p.m." to thwart airline policies. Airlines didn't want to crack down on customers and thereby lose goodwill, so they enlisted a government mandate so they could blame Washington and not fear competition for a more customer-friendly competitor. Behold, in the age of terrorism, the airlines' outmoded pricing scheme enjoys federal protection. BAM!

As to your alternatives to anonymous travel: (1) one is required to have a valid license while driving, making anonomity impossible; (2) maybe you have your own plane, but I and most Americans do not; (3) absent FAA mandates, I suspect many airlines would not rigidly enforce the ID rules, and given that fake IDs are easy to get, the ID rules have no more relation to stopping terrorism than do, say, NYPD subway bag checks.

The ID rule, like the subway searches, exists solely to placate the public into believing that safety is on the march. Airplanes are largely safe because we search passengers and baggage, not because we make them carry plastic cards.

Of course I agree that private airlines should be able to impose ID rules as a condition of travel; I just don't think we need the federal government BAM! maintain high prices under the guise of national security.

4:52 PM  
Anonymous Anonymous said...

There is nothing unconstitutional about randomly checking bags of people who are riding to the subway. Yes, it is an intrusion on your daily life, but I cannot see how it intrudes on your constitutional rights.

Nobody is forced to ride the subway. If you are riding it, and forced to stop for a few minutes, it is an inconvenience, but it's not depriving you of constitutional rights. You might be annoyed by someone peering into your bag. If you are, don't bring the bag with you, or if you have to, don't bring anything you don't want anybody to see.

2:43 PM  
Blogger Jabotinsky said...

Anon.,

It is unconstitutional (not just in my opinion, but according to the Supreme Court too) to conduct random searches of pedestrians or drivers in a general effort to control crime. (See Edmond, cited above.)

Nobody is forced to walk on Fifth Avenue or to drive on I-95, yet we somehow believe that police cannot search walkers and drivers absent reasonable suspicion. Americans have this funny belief that cops can't search and seize us for no particular reason. Unless you can distinguish the subway from cars and city streets, your argument has real problems.

5:49 PM  
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