1012 Virtual Indecency
It is hard to imagine how any government agency created less than ten years ago could grow into what Rep. John Mica, one of its creators, has called a “huge, unwieldy bureaucracy”. That is his description of the Transportation Safety Administration (TSA). Rep. Mica has recently gone so far as to call the illusion of security provided by the TSA a “big Kabuki dance”.
Creating a behemoth tax-sucking top-heavy bureaucracy like the 67,000 employee TSA is nothing new inWashingtonD.C. The TSA’s size and expensiveness are not the real threats to the American people. The true threats are buried much deeper.
Currently, attention is focused on the TSA’s new virtual indecency procedures being forced on the flying public. Most of the publicized concern surrounds privacy problems generated by the ability of full body scanner operators to perform electronic strip searches. However, privacy violations are not the core problem either.
Privacy is a secondary issue. Privacy is a condition derived from and defined by constitutionally enumerated civil protections. This is important because privacy can be as much about perception and permission as it is about being any kind of right. A civil libertarian and a socialist bureaucrat would have very different ideas about what constitutes an invasion of privacy.
The genius of the Bill of Rights, in particular the Fourth Amendment, is in their restrictions on observable behaviors rather than on time-locked social mores or philosophical idealisms. The same genius imposed those limitations on the federal government, not on private citizens. Citizens were to be protected from being victims of over zealous or misguided rulers and their subordinates.
TSA infringements should cause concern for any respecter of enumerated civil protections who undergo invasive airport pat downs. It should matter little what room TSA workers are in while they gawk at unclothed bodies or whether or not they also get to enjoy your face as well.
The text of the Fourth Amendment reads in part, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated”. According to the text, its prohibitions extend not only to possessions and “effects” but also to the persons themselves.
For the first 150 years, the amendment’s bans were only applied to the federal government. This speaks directly to its original purpose and to the violations against it now carried out in the name of public safety. It is unbelievably tragic and beyond ironic that the American people seem blind, ignorant or apathetic to the systematic disregard of their civil protections by the very entity against which the Bill of Rights was established.
The Fourth Amendment protects individuals in terms of personal security against federal encroachment of their personal space without reasonable cause specifically targeted toward particular individuals. For better or for worse, over the decades since the early 1920’s but especially since the early 1970’s, defining “search” has been centered on police actions, something the founding fathers could not have foreseen. That being granted, the standard for determining the legality of a search is a reasonable expectation of privacy.” The upshot is that an officer must observe suspicious behavior from a position that would have afforded any other member of the public the same perception. Persons cannot be frisked, let alone scanned, simply because they exist in a particular place for a legitimate purpose.
Americans are now routinely violated and placed on a par with terrorists. There is simply no legal justification for near pornographic scanning of one’s wife, daughters, mother or grandmother.