excerpt from my book on technology, terrorism, and
DHS, tentatively titled "Skating on Stilts." (If you want to
read the excerpts in a more coherent fashion, try the categories on the
right labeled "Excerpts from the book." I'm afraid I can't fix the bug
in TypePad that prevents me from putting them in the category in
reverse-chronological order, but I have started putting chapters up in
pdf form from time to time.) Comments and factual quibbles
are welcome, either in the comments section or by email:
firstname.lastname@example.org. If you're dying to order the book, send
mail to the same address.
But a system that only works after a transatlantic flight has landed doesn’t do much good if al Qaeda is trying to blow up the plane before it lands. Protecting the flight, as opposed to the border, is supposed to be TSA’s job. If CBP can construct a workable screening system that uses all of the government’s data, why didn’t TSA have such a system eight years after 9/11?
The short answer is that TSA tried to build such a system and was rebuffed by a well-organized privacy campaign. In fact, during the years since 9/11, privacy lobbyists managed to stall a host of new air security measures. In particular, they forced TSA to postpone and largely neuter the kind of data-based screening system that has worked so well at the border.
They had help from history. Keeping weapons off planes was our central strategy for years – since the days of the Cuban hijackings in the 1960s. But it was obvious for years that that strategy was played out. Weapons kept getting smaller and their hiding places kept getting more imaginative and harder, or more embarrassing, to find. (The 80 grams of explosive that Abdulmutallab was carrying weighed a bit more than a hot dog, and a bit less than bra inserts that can change a B cup to a C.)
The focus on weapons had to change, about which more later, but at present searching for weapons is the system we have, and it needs improvement badly. As everyone now knows, we actually do have better ways to find small weapons hidden in embarrassing places. The millimeter-wave and backscatter machines that look beneath clothing are far preferable to a “patdown” that probes everywhere that three ounces of explosives could be hidden. And, creepy as the scanners are, the privacy issues can be handled by making sure the images can’t be stored or copied and the image screeners are nowhere near the people being screened.
TSA had been using these machines as an alternative to patdowns in “secondary” screening for about a year. But most travelers don’t trigger secondary scrutiny. Abdulmutallab didn’t. If keeping weapons off the plane is our main line of defense – and it is – we need to screen everyone for the weapons Abdulmutallab was carrying.
So why don’t we? After the attack, everyone was clamoring for the scanners, and the privacy groups seemed quite responsible on the subject. As Marc Rotenberg, head of the Electronic Privacy Information Center, told the New York Times last week, “his group had not objected to the use of the devices, as long as they were designed not to store and record images.”
For an organization committed to staving off 1984, EPIC seems remarkably adept at dropping things down the memory hole. Just three months before claiming that it didn’t want to prohibit whole body imaging, EPIC and nearly two dozen other privacy groups sent a letter to Congress saying that whole body imaging ought to be, well, prohibited. In fact, the groups said, DHS’s Chief Privacy Officer had violated the law when she failed to prohibit TSA’s new policy on whole body imaging. If the law had been followed, the groups said, “the new policy would not have been implemented in the first place.” Such screening, they declared, “is exactly the type of action that the Chief Privacy Officer should be preventing in satisfaction of her statutory obligations.” (Note: Rotenberg later told me that the New York Times misquoted him.)
For the privacy groups, it was just another day at the office. The coalition that signed the letter was by now a well-oiled machine. It had stalled many new security measures since 9/11. And as far as whole body imaging was concerned, the privacy machine was on the brink of another success.
In June, a bipartisan majority of the House of Representatives had voted to prohibit TSA from using the machines for primary screening. With a three-to-one margin of victory, it was nearly inevitable that the restriction would have found its way into an appropriations bill or some other must-pass piece of legislation. If not for the inconvenient timing of the Christmas attack, another new security technology would have been taken off the table.
This wasn’t a victory just for the left-leaning groups that have traditionally scoffed at a war on terrorism. The privacy coalition that nearly killed imaging also included the American Association of Small Property Owners and the Gun Owners of America, and they persuaded large numbers of conservatives to vote against the security interests of air travelers. The alliance reflects a kind of political circularity, in which the far left and the far right discover that they have more in common with each other than with the center.
But in a deeply divided Congress, where each side counts on its most vociferous supporters to turn out the vote, one way to achieve bipartisan action is to propose legislation that appeals to the fringe of each party. The ban on whole-body imaging was just such a proposal. Republicans and Democrats alike could claim a victory for their base. Republicans and Democrats alike were protected against partisan second-guessing in the event of an attack because the measure had support in both parties.
It is a magic combination that has worked for the privacy coalition for years, despite the fact that most Americans are far more concerned about effective security than privacy.