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a citizen’s journal by Thomas Nephew

Are Metro bag searches really that bad?

Posted by Thomas Nephew on 21st February 2011

Recently I was asked:

are metro bag searches really that bad? I am no fan of racial profiling, but this just doesn’t sound that bad. What’s to hide in a bag? If it’s not a bomb, it’s not a bomb. Just keep your embarrassing belongings at home if you don’t want Metro Police to see them.

The following is adapted from the answer I sent.

= = =

You are now less free to move about the country
The fundamental answer, of course, is that we have the Bill of Rights for a reason, that reason is to affirm individual rights, we concede them at our peril, even if the concession appears a small one.

Part of what’s at stake here is maybe captured in that Southwest Airlines ad line that says we should be “free to move about the country.” It’s important that we carry our our rights with us wherever we go, including the right to be free from unreasonable searches. This is the very definition of an unreasonable search — for no reason (at least for no disputable reason), you are pulled aside and subjected to a search.

Why is this particular right important? The government should have to have a very good reason, in advance, for searching you — whether in your home or at a subway stop — because otherwise the door is open to fishing expeditions where you get stopped and searched just to see if you can be charged with something or other. You’re focused on bombs — but the police are not; anything they turn up is generally fair game (thanks in part to poor Supreme Court decisions, but that’s the world we live in). The burden shifts to you to know what you ought not carry with you; as a result, you’ll generally carry less; you’ll be less free. We agree one ought not carry bombs around. But fewer agree we ought not carry certain drugs around. And many fewer still agree we ought not carry anti-slavery literature around. Yet all of those things have been sanctioned before. We can’t know what the future holds. Let’s not make searching us for anything any easier than it should be.

Where will these searches end? We’ve already all but conceded that this may happen in isolated occasions — for example, when entering certain buildings like the WMATA headquarters, or when getting on airplanes. (A point Metro Transit Police Chief Taborn made to me in person, and then considered his case closed.) We’re now about to concede it can happen as we move about a city on its subways. We’ll have no point left to make if we are soon asked to submit to random bag searches on the sidewalks and streets of our cities as well. Would you still urge people to simply not take embarrassing things with them, or might you then say enough is enough? We’re saying so now.

Not just unconstitutional, but stupid
Finally, these searches aren’t just unconstitutional — they’re stupid. And they’re not just stupid — they’re stupid by definition. What program of unreasonable, suspicionless (and unconstitutional) searches is going to be better than a program relying on reasonable (and constitutional) ones based on real suspicions? What bad guy is going to be foiled by a plan to occasionally set up bag searches at a few stations, in which a majority (likely a vast majority) of people with bags are left unexamined, and which he or his co-conspirators can simply turn around and walk away from? This is a plan all but guaranteed to never, ever catch a single bomber. Its proponents sometimes concede that — but argue it nevertheless deters bad people from planning attacks, by introducing an element of uncertainty. Yet it’s absurdly easy to plan for the contingency of encountering a bag search: walk away and try somewhere else, some other time. I’d venture to say a subway system advertising this as its best thinking on security invites attack more than it deters it.

Thus WMATA’s bag search program really encroaches on a fundamental civil liberty, yet only pretends to provide security. To me, opposing such a program is an easy choice to make . By contrast, I’m ruefully confident that if we don’t block this now, future Chief Taborns will see the new status quo as a justification for further intrusions on our freedom.

How bad is that really? In the scheme of things, it’s not as bad as an unjust war, or torture, or assassination policies. But it’s bad enough. We ought to fight for our freedoms whenever they’re encroached on — especially when the justification is as threadbare as it is in this case.

Thanks for writing, and thanks for asking an honest, challenging question. I hope this was a decent answer.

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License plates: more private than you may think

Posted by Thomas Nephew on 3rd April 2009

I’ve learned it isn’t quite true that anyone can look up anyone else’s license plate information — that is, inquire who belongs to a car with an “ABC 123” license plate that just annoyed or intrigued you.  Anyone can try, but they may well not succeed — and that has implications even for those who can look up such information.

The Driver’s Privacy Protection Act of 1994 restricts license plate and other motor vehicle data lookups to legitimate governmental or business-related inquiries (is the fellow applying for a taxi driver or trucking job telling the truth about his driving record, etc.)  As EPIC (Electronic Privacy Information Center) tells it, the law was specifically written to prevent stalkers from obtaining personal information via license plate lookups — not a theoretical concern at the time.

To be sure, there are some pretty wide loopholes in the federal law: “use in the normal course of business,” “research and statistical activities,” etc.

Maryland law appears to be more restrictive.  When I tried to look up my own license plate on one of the countless online “license plate search” sites that turn up in ads when you Google “license plate”, I finally got to a screen asking me to check off one of the many federal exceptions allowing driving-related records to be released — but Maryland was not one of the states the service offered for search. (In fact, only a few states could be searched in this way, though this may be a function of the particular service I tried to use.)  The image to the right is a screen capture of what I saw; click through if you want a better look.*

More to the point, see also the MD DOT MVA “Protecting Your Privacy” page:

Your records are now automatically closed to the public unless they are requested by the police, an insurance company, a hospital or for another official business purpose.  […]

Now, without written permission from you, no one, except for those groups listed above who need this information for official business purposes, can obtain the following personal information about you from the Motor Vehicle Administration (MVA):

Personal Information:

  • Your name
  • Your address
  • Your driver’s license number
  • Your date of birth
  • Your social security number
  • Any other information that identifies you

 

There are law enforcement exceptions in both the Maryland and federal statutes.  But as I’ve learned, there’s a popular refrain out there that “anyone can look up a license plate,” that it’s “public,” that there’s “no expectation of privacy” when it comes to this information.  I recently organized a forum about the possible acquisition of a license plate scanner by the Takoma Park Police Department.  Here’s an exchange from that forum:
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License plates and the expectation of privacy in a public place

Posted by Thomas Nephew on 4th February 2009

I’ve been taking part in some online discussions about the Takoma Park license plate scanner issue. One refrain that keeps coming up is that there’s “no legal right to an expectation of privacy in a public place.” As one correspondent put it succinctly,

The sequence of letters and numbers on a license plate is obviously in the public domain. Any notion that people have a right to keep that very public information private is nonsense on stilts.

Actually, there are all kinds of reasonable expectations of privacy in public places, and expectations of privacy of “public information.” Your discussions with a friend or the book you’re reading in a park — there are devices that can zoom in and capture those sounds or sights, but a court would (or at least should) frown on doing so without a warrant.

Consider systems that automatically identify you as you walk by their video cameras — the distaste you feel is meaningful, you don’t care whether you’re in a public space or not. (I realize these systems are unfortunately common; I’m questioning that they should be.) The basics about your identity — name, appearance — are public, but most of us don’t welcome automated systems putting the two together for no good reason.

But your distaste is more than mere distaste; it is a sound instinct for freedom, and it shouldn’t be shrugged off. Why, then, should we become complacent about the same kind of tracking of cars — for better or worse, our principal means of transportation and freedom of motion?

Consider: license plates are “anonymized” for a privacy reason — they don’t say “[your name here]” on them, unless of course you choose a vanity plate that does so. To see this, imagine the reaction if license plates did have to list people’s last names on them — and then realize that license plate scanners essentially do just that, to no legitimate law enforcement purpose for 99.99% of the plates those scanners will encounter.

The wholesale, automated capture of license plates in time and space represents a ‘catch and (maybe) release’ search or seizure of information about us — and one that seems based neither on probable cause nor on reasonableness. Rather than a reasonable search or seizure (the 4th amendment yardstick), it is literally an unreasoned search or seizure.

People shouldn’t assume there’s a clear analogy between a cop on the street writing down a license plate and a device in a squad car vacuuming up every license plate image it senses. The former is a decision by someone who had a reason to do so and who would be reasonably expected not to do so arbitrarily. The latter — the license plate scanner situation — is in some ways almost the exact opposite of that; it’s a difference not just in degree but in kind.

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