Saturday, January 29, 2011

The TSA, the Nanny State, and More

This evening, I changed my Facebook profile picture to the Second American Revolution flag ( Within an hour, two people sent me messages asking me what it was about. The reply I tried to give was more or less the following:

The flag is from the American revolution, with the number two added. People who are fed up with the current state of affairs in the country use this flag to show that they want a second American revolution, but a peaceful one.

So, what am I so fed up about that I would like to see a revolution? I will try to explain my thoughts here. I may update this article as I have more discussions with people, rethink things, and try to explain myself more clearly.

The things which I am most frustrated about in the United States, at this time, are related to civil liberties. The specific civil rights which I see being violated are free speech, unreasonable searches and seizures, and lack of due process.

The country has other major problems, such as illegal immigration, or especially economic issues like our ever increasing debt, but my focus for now is on these civil rights issues. I'm not saying the other issues we are facing are any less important, but I only have the energy to focus on a few of the issues :) These also happen to be issues that impact me directly.

Apologies for not including links and references for all my statements which are not pure opinion. I am writing most of this from memory, from what I have read on various sites over the last couple of months.

TSA security procedures in airports
I have to thank the TSA for helping me to wake up to the problems we are seeing with civil rights violations in our country. In November 2010, the TSA began deploying two new security procedures at airports: full body scanners, and enhanced pat downs. The full body scanners had been introduced months earlier, but it wasn't until November 2010 when they were being deployed on a wide scale, and when media attention was brought to these procedures after John Tyner's refusal to comply (

Before starting to explain my feelings on these security procedures, I'd like to say that I've read a few articles written by Bruce Schneier on the topic, and while his thoughts seem to echo my own, he expresses himself much more eloquently than I could :) I would recommend reading his articles or watching his interviews, if you want to see a well-expressed argument for what I'm feeling. Here is one example on security at the Washington monument: .  If my article is too long (TLDNR! :) ), please, just watch this video:

First I'll explain the problems I have with the security procedures themselves. Then I'll discuss the problems I have with TSA's reactions to people's protests of the security procedures.

Problems with the security procedures

Body scanners
Here are some problems I have with the body scanners:

Possible radiation risk. This applies to the backscatter machines, and not the millimeter wave machines. The TSA claims that the backscatter machines are safe, but this is debatable. I haven't researched this aspect completely, but a few of the points I've gathered are:
  • The TSA claims that independent organizations have verified that the machines are safe. The problem is that some of these organizations are claiming that they actually never did verify them as safe, at least not for the way they are being used today.
  • Other independent groups are asserting that the safety of the backscatter machines is currently unknown, or that while the radiation dose is low, it is concentrated on the skin. For example, UCSF physicists:
  • Even if the machines, during proper calibration, emit doses of radiation wthin some predefined limit, the machines may actually emit much larger times the expected dose if not calibrated properly. The devices may not be supervised properly or inspected frequently enough to guarantee that radiation spikes do not occur.
  • Any unnecessary dose of radiation should be avoided. Incremental exposure to small doses of radiation poses a risk. This puts frequent fliers at a higher risk than occasional fliers.

Violation of privacy: I do not want to have to show my intimate body parts as a prerequisite to boarding a plane.
  • Storing and transmitting images: I'm not too worried that a TSA employee will be so thrilled, or perhaps so amused, with a picture of my own personal naked body, that it will appear on the Internet and go viral. I think this is unlikely, though not impossible. The machines do indeed have the possibility to store images, though this functionality is supposedly turned "off" before they are shipped to the airports. There is always the possibility that the functionality could be turned back "on" (we don't know how this is controlled), or that an employee could sneak in a cell phone or camera into the room where the images are viewed.
  • Basic privacy concern: However, I reiterate, even if there were 100% guarantee that body scanner images could not be saved, I still have an issue with the violation of privacy. I have an issue with somebody requiring me to show my intimate parts, even if the viewer is in a separate room, even if the viewer doesn't see my face.

Here are the problems I have with pat-downs:
  • I do not want to have my very intimate body parts be touched as a prerequisite to boarding a plane. I do not even want my moderately intimate body parts (like armpits!) to be touched. The fact that the TSA agent uses (or is supposed to use) the back of their hands, and not their fingers or palms, for the intimate parts does not make it acceptable.
  • TSA agents might not use a clean pair of gloves between patting down different passengers. If you are selected for a pat-down, you may be concerned about your property, which you cannot keep with you until the pat-down is complete, and you may be nervous or distracted, and forget to request the agent to use a fresh pair of gloves.
  • I feel for the more vulnerable people who might have to go through a pat-down: rape and sexual assault survivors, cancer survivors with prosthetic devices, people with metallic implants who will be selected 100% of the time for a pat-down,...

"It's for our safety"
This is the number one argument to support the body scanners and pat-downs. I wrote a letter to Diane Feinstein, Senator of California, about the invasive screening procedures, and she replied with this argument. She included in her reply one key phrase: "critics of these security screenings must consider the possible consequences of relaxing our security measures". I replied to her that I agreed with her 100% on this phrase. In my reply, I stated:

Indeed, any security measures should be evaluated for

a) their effectiveness,

b) the consequences of the disaster the security measures are attempting to prevent,

c) the probability of such a disaster occurring, without the security measures in place, and

d) the consequences and costs of using the security measures.

These points are all important, however, the Senator, and others who argue on behalf of the scanners and pat-downs in the name of safety, are only concerned with point b).

As for the other points:

a) The effectiveness of the body scanners and pat downs finding explosives such as those used by the underwear bomber is limited. Explosives may be hidden under the folds of skin or inside body cavities, or under large pancakes, and this will not appear on the image of the naked body scan.

b) The consequences, should a terrorist manage to get explosives on a plane, and should he succeed at detonating a bomb, are indeed disastrous. A few hundred lives would be lost instantly.

c) This is a very important, and yet seemingly overlooked, aspect. The likelihood of a terrorist blowing up an airplane, with pre-naked-body-scanner-and-pat-down procedures is extremely low. You are more likely to be struck by lightning or die from a bee sting. You are much more likely to die in a car accident on the way to the airport. I'm not saying a terrorist attack will never happen. All I am saying, and requesting of the Senator, other lawmakers, and the public, is that the likelihood be put into perspective.

d) These security measures are making travelers feel violated and humiliated. They are making people refuse to travel, making it more difficult or impossible (depending on location) to visit family. One of the consequences of the invasive security screenings is that they are actually encouraging people to drive instead of fly, and are these people, on the roads, are now at a higher risk of dying (and causing death) during traveling than they were before the invasive security measures were put into place!

"My experience wasn't that bad. I didn't even have to get scanned or be patted down"
I have read some people justifying these security measures, saying that they are not so bad, and that they didn't even have to go through them at the airport. While it is nice that you did not have to go through this experience, that in itself does not make it acceptable.

"Touch my junk, just don't probe my rectum”
A couple of people I've talked to have agreed that having body cavity searches would be “going too far” for airport security, even if a terrorist got caught in an attempt at smuggling explosives in his rectum. Yet, these people accept the body scanners and enhanced pat-downs. Why would body cavity searches be going too far, but body scanners and enhanced pat-downs are not considered “too far”? The only answer I can assume is that the government has put the body scanners and pat-downs in place, so some people seem to think that it is acceptable.

"You're being a prude/puritan/too modest"
I can understand people making this point. Some people would not be ashamed to strip naked, even in public, if they felt it would help security. Some people would not be ashamed to strip naked, even in public, just for fun :) I am in no place to pass judgment on people who are comfortable with their bodies and who are uninhibited. What I have a problem with is being required to strip naked as a prerequisite to boarding a plane. A couple of rather uninhibited, non-prudish ladies (one of them a porn star) also feel that the TSA body scanners and pat downs are intrusive., (not safe for work!). While this may be a modesty issue for some, this is not just about people being shy.

"I have nothing to hide"

I also have a problem with being required to provide information (especially not even knowing what information is provided), as part of an extensive background check, as a prerequisite to boarding a plane.  This has been a solution some people have proposed.

"I have nothing to hide" is a popular argument in support of invasive screening procedures, physical or otherwise. My humorous response is "I DO have something to hide: I'd like to hide some female body parts".

Humor aside, and if we're talking about information instead of physical screening, this is actually quite a convincing argument. When I first heard this, years ago, I really did not find anything wrong with it.

One problem with this argument, is that everybody does indeed have something to hide. Nobody is a saint. Not you, not me. We all have embarrassing moments in our lives which we would like forgotten. Some of these embarrassing moments may have been recorded somehow (photos, videos, phone conversations, Internet chats, credit card purchases,...).

However, assuming you have lived a perfect life, and have zero embarrassing moments in your personal history, one of the main problems with this argument is that it implies an inherent utter and complete trust in the government, and it implies that government will only ever be looking for “bad” information. Government employees are fallible human beings, just like anybody else. Why do you shred confidential documents before tossing them into the trash? Why do banking websites use secure connections? Do you post your medical history on your blog or Facebook? You are protecting your confidential information from people who would misuse it. This information should also be protected from the government who could misuse it.

What about when “good” information becomes “bad” information? When “innocent” information becomes “suspicious” information? What happens when government decides that certain activities, in which you may have participated, believing them to be exercises of your freedoms, are considered a "threat"? What happens when people who "actively object" to the airport screening measures, protest for animal rights, or protest against abortion are deemed "domestic extremists"?, These memos may never have become actual policy, but it highlights how you may have some information you may think you have no problem sharing, but which may indeed be information you may want to "hide" from the government, if it means you would be placed on a terrorist list.

"Nothing they could do could make me stop flying"
Some people actually argue that they are indeed protesting by continuing to fly. They view the TSA as perhaps wanting to intimidate passengers to not fly, and these people are being brave dissidents by continuing to fly, in the face of TSA intimidation.

Unfortunately, this is an incorrect interpretation of the situation, and my take on this argument is that it is some twisted justification for flying – for not having to make any sacrifices. The reality is that by continuing to fly, by not protesting the invasive procedures in any way, you are encouraging the TSA to violate our basic dignities and rights every day. You are contributing to the reliving of trauma by rape victims being groped by TSA agents. You are contributing to the possible new cases of cancer caused by radiating x-ray machines. You are contributing to the increasing encroachment into our personal lives by the growing police state. But, I suppose if you are able to go on your vacation, it is worth it?

So what solutions would I like implemented? Here are just a few ideas to consider.
Place the risks into perspective
We should not be aspiring to have zero risk security, in the airports, on the roads, in shopping centers, or in any part of our lives. All security measures have costs, inconveniences, and intrusions into our personal lives. These costs and inconveniences must be reasonable in light of the risk of the problem we are trying to mitigate, and the effectiveness of the security measures. Let's quantify, to the best of our abilities, the chances of a successful explosion of an aircraft by a terrorist, using pre-2010 security measures (metal detector for passengers, x-ray machine for luggage) versus security with body scanners and enhanced pat-downs. If the risk reduction with body scanners and enhanced pat-downs is minimal (I believe it is), or not enough to justify the cost and violations of our civil rights (I believe it isn't), then let's get rid of the body scanners and pat-downs.

Offer multiple levels of security
Some people would prefer to get on a plane if every single passenger were scanned and pat down. Other people would prefer to just use the metal detector. Let's have some airlines use extremely strict security, and others use more reasonable security. I'm not sure how or if this could be possible. Perhaps this could vary by airport terminal instead of by airline, to ensure that somebody does not go through the "weak" security line to go on a "strong" security flight.

Let the airlines take responsibility for security, not the TSA
The airline companies have a vested interest in minimizing attacks on their planes. From a purely direct financial perspective, it is in the airlines' interest to implement the optimal security procedure: the procedure which minimizes the risk of huge financial losses of a destroyed aircraft and potential lawsuits in the event of an attack, while at the same time being at a reasonable cost. An airline also risks bad PR if a terrorist attack occurs on its plane. I wouldn't say that the airlines are particularly concerned about customer service (especially when you see things like RyanAir considering charging to use the restroom on the plane!), but I think they could do a better job than the TSA.

Israeli-style screening?  Maybe, maybe not
Some people have suggested having behavioral profiling, and multiple levels of questioning passengers, at different points outside and inside the airport.  Passengers who seem suspicious while answering questions would have to go through additional screening.  There are some potential problems with this approach.   What types of questions would be asked?  What would the additional screening consist of?  If a passenger seems nervous, would they immediately be frisked, or asked more questions before proceeding to a pat-down?  Innocent people who have "nothing to hide" :) can be nervous when being interrogated by authorities.   What is the likelihood of false positives? (Frisking completely innocent people).   Would the answers you provide to the questioning be recorded and stored in a database?   What would be the cost of implementing this?  I assume it would be less than the body scanners.  This type of profiling could be a potential non-invasive and efficient security measure, but these questions need to be addressed.

Problems with the TSA's reactions to disagreement
So, what can you do if you don't want your “junk” felt at the airport? There are a few options, but each have consequences.

Boycott flying: but what are the alternatives?
If you don't like it, don't fly”. This is a common response to people expressing their disagreement with the TSA's security procedures. Janet Napolitano even said this much back in November.
  • No other means of transportation for certain trips: What happens if you live overseas, or in Alaska, or in Hawaii, or simply on the opposite side of the continental US from your destination? Flying is really the only transportation option.
  • No other means of transportation without invasive screenings. What happens when body scanners and pat-downs come to long-distance buses and trains? The only option then (for those in the continental US) will be driving, which is not a valid option for crossing the entire country.

Take your chances at the airport? Think arrest, $11000 fines.
Maybe you will get lucky and not be selected for the scanner or the pat-down. What if you are selected? If you decide, after being selected, that you would rather just not fly, you may be threatened with arrest, or an $11,000 fine.

Express your disagreement politely: Expect confrontation
If you tell the screener that you feel the procedures violate your civil liberties or the constitution, even if you convey your message in writing on your skin, be prepared for possible confrontation. Passenger Aaron Tobey, wearing running shorts and no shirt, had part of the fourth amendment of the constitution written on his chest. He was cited for disorderly conduct. The charges against him were ultimately dropped, but the fact that he was charged shows that our right to freedom of speech and expression is under attack at the airports.

The terrorists have won
When we react to terrorist attacks by virtually strip searching passengers and by inspecting the intimate body parts of passengers at airports, the terrorists have already won.

Terrorists, whether organized or isolated, will always exist. A “war on terror” is a futile war which will never end. There will always be somebody trying to hurt innocent people, either out of dementia or out of political motivations. Somebody wishing to carry out a terrorist attack will try to circumvent any security measures we have in place.

We can choose how to react to terrorist attacks or attempted attacks. We can refuse to be afraid and be smart at the same time. We can implement reasonable security measures without removing multiple civil rights. If we do this, then we “win” against the terrorists.

If we, on the other hand, live in an eternal state of fear of terrorists lurking in every corner, if we lose more and more of our civil liberties in the name of the war on terror, or in the name of security, if we live in a state of paranoia of our neighbors and report them of suspicious activity (thanks to Janet Napolitano and "See something, say something" at Walmart ), then the terrorists have won.

The Nanny State
We are seeing more and more laws being passed to protect us from... ourselves. We somehow feel the need to have the government baby-sit us.

I've seen this phrase “My freedom to swing my arm ends where my fist hits your face.” If the Constitution is too difficult a document for lawmakers to follow, I believe this phrase could be a good guideline for making laws :)

Here are some examples of Nanny State laws:
  • Kinder “Surprise” chocolate candies, containing a toy inside a chocolate egg, are banned. . These chocolates are banned because of the 1938 Food, Drug and Cosmetic law act, which bans having non-edible items inside food: . Parents should not give these chocolates to infants, and parents should, as always, supervise their children when giving them something like this to eat. Adults can handle eating these chocolates. There is no point in the government banning this, wasting resources (time and money) during border inspections, and having unnecessary intrusion for the traveler. 30 billion of these chocolates have been sold since 1973 ( ). New European Nanny state laws will impact these chocolates in Europe starting in 2011, however, regulating the shape of the egg as well as the shape and size of the toy contained inside.
  • Mandatory child helmet laws. Parents should be responsible for children wearing helmets, not the government.
  • Mandatory motorcycle helmet laws. If a motorcylist wishes to ride without a helmet, and if he dies from an accident, he will only kill himself.
  • Prohibition of marijuana and other drugs. If somebody wishes to smoke marijuana in an isolated location (some location which is currently approved for smoking cigarettes), any damage he will cause will be only to himself. Driving under the influence of drugs, on the other hand, should be forbidden, as is drunk driving, because that has a relatively high risk of causing death or injury to others.
  • Mandatory bicycle helmet laws for adults. Same argument as motorcycle helmet laws, but with the additional argument that death or injury from a blow to the head is less risky for cyclists than motorcyclists
  • Limitations on walking on the sidewalk or street talking on the phone or listening to music. Laws are being or have been proposed in Arkansas and New York which would place limits on using MP3 players or phones while walking as a pedestrian. The proposed Arkansas law would apply to pedestrians walking on the sidewalk, while the New York law would focus on pedestrians crossing the street.

In each of these cases, my main argument against the law is that the person exercising the “risky” behavior (which in some cases, such as the Kinder chocolates, represents really virtually no risk at all!) only presents a danger to himself or herself.

What about the costs in emergency rooms, costs associated with health problems (throat/lung cancer from marijuana smoking) or the pain experienced by the family of the person who has bad luck with his risky behavior (killed motorcyclist)?

The problem is that we cannot, and should not, enact laws and restrictions on every possible behavior which could result in one's self in the emergency room, cancer, or emotional pain to a family member or loved one. If we were to do this, we would have to:

  • Make suntanning at the beach illegal (this causes skin cancer)
  • Make eating fatty foods illegal
  • Require all people to adhere to a regular exercise plan
  • Require pedestrians to wear helmets at all times
  • Make alcohol illegal
  • Make tobacco illegal
  • Make breaking up with your boyfriend or girlfriend illegal (they may become suicidal)

Unfortunately, we are moving in a direction in which these sorts of things, or other activities you enjoy and take for granted today, may indeed become illegal.

Due Process (for Copyright Claims – for now)

HADOPI in France
I actually first noticed issues with due process in France, with the HADOPI law. I'm not an expert on French law, or on what sort of due process French citizens would normally expect. The HADOPI law is an anti-pirating law. A copyright holder simply needs to make a claim to an ISP that an Internet user has infringed copyright (by illegally downloading an MP3 for example). After 3 claims against a user, the ISP will cut off the user's Internet access, the user will be required to keep paying for the Internet access, and the user will be placed on a blacklist so that they will not be able to subscribe to any other ISP. The user must prove his innocence (the copyright holder simply needs to make a claim, but the user must prove his innocence – guilty until proven innocent), and can only appeal his case after the third claim ( ).

Think you have nothing to hide? You don't pirate, so you're not affected? It doesn't matter. All it takes to get you blacklisted from Internet access is a pirate spoofing with your IP address, a pirate using your WiFi connection, or simply a mistaken claim by a copyright holder.

So why talk about France in an article about civil rights in the United States? Because the types of issues I'm talking about in this article are not limited to the United States, and because it is only a matter of time (in my opinion) before the United States implements a HADOPI-type law. The United States is already bypassing due process for taking down websites accused of copyright infringement (next paragraph).

DHS seizing domain names
The Immigration and Customs Enforcement (ICE) of DHS has been seizing domain names for copyright infringement ( ). Why is ICE involved in this? Why is DHS involved in this? Who reported these sites as copyright infringers, and where was their proof? These sites are being shut down without warning to the domain owners ( ). What happened to due process? If DHS can shut down sites without due process for piracy, what will stop them from shutting down sites which include blogs speaking out against the government, on the basis that these sites could pose a risk to national security?

Thank you for your patience, reading my article up to here :) So what can we do? What kind of revolution can take place to restore our civil rights and have reasonable laws? I wish I had the answer. A few things I can suggest:
  • Read the news and be aware of current events and how our rights are being encroached on daily
  • For TSA related issues, join pages on Facebook like Boycott-Flying ( ) or We Won't Fly ( ) which are updated frequently with relevant news stories.
  • Boycott flying, or if you have to fly, opt-out of the scanner and politely express your disagreement.
  • Write to your representatives and senators
  • Write to the president
  • Write to the TSA
  • Write articles or blogs
  • Speak about the issues with family and friends
  • Participate in peaceful protests
  • Hand out literature
  • Vote out lawmakers who support encroachments on civil liberties
  • Any other suggestions? :)

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