The Tsa’s Wholesale Violation of Our Civil Rights, Including Economic Liberty

Lynne Kiesling

I have been a too-silent opponent of the Patriot Act’s authorization of invasive surveillance in the name of national security. One of the consequences of that authorization has been the growth of the Department of Homeland Security and, under it, the formation and growth of the TSA. Those of us who travel frequently have known the TSA as “Thousands Standing Around” for years, and have derided the TSA policies on shoes (the “shoe carnival”) and liquids that are the security equivalent of locking the barn after the horse is stolen.

The TSA’s push to increase the intrusiveness of their physical search of passengers for specific items has pushed beyond laughable inconvenience and inefficiency into literally physically invasive search that does not qualify as a reasonable search under the administrative search carve-out of the Fourth Amendment. The Fourth Amendment, as written, protects individuals from unreasonable government search and seizure of their person and property, and the TSA operates under the administrative search carve-out from it — basically, if you put your bags on the conveyor you are presumed to have consented to the search of your person and possessions. The TSA are trying to claim that the new backscatter x-ray full-body scanners, millimeter wave full body scanners, and aggressive, frisking-style pat-downs are a sufficiently reasonable search that they should be considered legal under administrative search.

The TSA’s position is wrong, and instead is an aggressive, authoritarian push that violates not just the dignity of individuals, but also our innate (i.e. NOT government-granted) civil and human rights. Their policies and procedures operate on the presumption that every single person that presents himself or herself at the airport to engage in a commercial transportation transaction is a potential terrorist. That presumption flies in the face of every concept of freedom and individual rights that is at the foundation of a free, dynamic, vibrant society.

They do so in the name of making us safer in the face of terrorist threats, but this is a false equivalence, and one where economic logic is important. Their invasive practices require lots of resources. Did you know that each of these scanners costs $175,000? How many FBI intelligence agents and explosive-sniffing K-9 teams could we train and employ with the millions of dollars that Congress has already authorized for the purchase of these scanners? The opportunity cost of these scanners is enormous. Enormous. And it puts us at more risk than we would face if we instead focused those resources on more effective tools, such as behaviorally-targeted intelligence gathering and explosive-detecting dogs.

But here’s where the political economy comes in. The companies who manufacture these technologies are active lobbyists, and have spread their lobbying dollars liberally among the heads of security-related committees and sub-committees in the 111th Congress, and those members of Congress have delivered millions of dollars in scanner contracts to these companies. If that’s the decision-making dynamic in Congress, what hope do the relatively cheap intelligence and dog options have in the face of well-funded x-ray and MMW scanner lobbyists?

These trampling of individual civil liberties have economic implications. Remember that airlines operate on razor-thin margins, and Herb Kelleher of Southwest famously observed that the last 5 or 6 passengers on a plane make a difference between profit and loss on that flight. It doesn’t take a large reduction in demand for air transportation (an inward shift in the demand curve) for the airlines to see that profit margin evaporate. For example, I used to be both Platinum on American and Premier on United, which meant I flew at least 75,000 miles annually. For 2011, because of the TSA, I am taking 1 flight at the end of January because I made a commitment before these policies were implemented, but after that, I will not fly. I have zero flights planned, and only two tentative trips to which I’ve committed for vacation in July and December. With razor-thin margins, it doesn’t take many frequent flyers who want to maintain their dignity and respect staying off of planes to turn profits to losses, at the hands (literally!) of the TSA.

If you have made some of these arguments yourself, you have probably heard the response that flying is not a right. That is wrong. The Supreme Court has ruled in several cases that flight falls under the individual rights we have to free movement under the Constitution, and this right was reinforced formally in language in the Airline Deregulation Act of 1978. We do have the right to fly, and to fly without unreasonable search that strips us of our dignity.

Other economists have written about other more directly economic aspects of this important issue, thinking in terms of benefit-cost analysis. In November Art Carden wrote in Forbes that full frontal nudity doesn’t make us safer, and I strongly encourage you to read his analysis. In December Steve Horwitz made the substitution effect argument: if people substitute out of flying and into driving to avoid invasive TSA searches, those people are at much higher risk of accident and death:

To the degree that the new TSA procedures raise the psychic cost of flying, either by increasing the wait time at security and/or by making people very uncomfortable with see-through scanning or being fondled by a TSA agent, it will induce them to look for alternative methods of travel. For most people, that will be driving rather than flying. And the reality is that you are far more likely mile for mile to be killed in an automobile accident than in an airplane. The most dangerous part of air travel is driving to the airport. And if you consider not all of the risks of flying but only the risk of what the TSA procedures are supposed to prevent, namely the extraordinarily small chance of being killed in a terrorist attack on an airplane, it is even more likely that you will die in your car than on the plane.

Today the Electronic Privacy Information Center is hosting an event, The Stripping of Freedom: A Careful Scan of TSA Security Procedures, with several excellent panels. If you care about such rights, and I obviously think you should, I encourage you to check out EPIC’s activity in this area (including their lawsuit against the TSA to gain an injunction against the use of scanners for primary screening), contact your airlines and hotels, and contact your members of Congress. Otherwise our Fourth Amendment rights, which are essential to a dynamic, thriving society, will continue to erode, and will erode at an increasing rate.

9 thoughts on “The Tsa’s Wholesale Violation of Our Civil Rights, Including Economic Liberty

  1. Lynne,

    I love the graphic. I largely agree with the positions you’ve taken.

    However, I also believe it is time for a little sensible profiling. I suspect the percentage of petite redheaded PhD economists committed to carrying bombs onto commercial aircraft is vanishingly small to non-existent. Ditto for “blue haired” grandmothers. 🙂

    However, if members of either group appear at the checkpoint in burqas, all bets are off.

  2. Thanks Ed! I’m also wearing a t-shirt today with Scanned Lady Liberty on it.

    I think the best alternative to the existing approach is:
    1. Refuse to be terrorized, roll back fear-based 9-11 security measures (thank you Bruce Schneier!).
    2. Behavioral profiling, which is not racial or gender or ethnic profiling. It’s not easy, but it’s the right thing to do.
    3. Explosives-detecting dogs examining both cargo and passengers at the checkpoint.

  3. I think TSA has unwittingly helped begin the shift back toward the freedom end of the trade-off.

    Absurdity might truly be its own undoing.

  4. “Today the Electronic Privacy Information Center is hosting an event,”

    Would be lovely to be there but just not willing to put myself through the TSA system to travel to get there…..

  5. Lynne-

    How about an economist’s solution to this problem? Boycott is available, sure. But how about offering an alternative mode of air transport without the security enforcement? Would passengers take this route? Would terrorists chose to victimize this (presumably) easier target/market?

    Obviously, the real-life solution is difficult, but can the alternative solution be modeled?

    Thanks and R-

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