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The Fourth Amendment Test

You may not know it, but if you flew recently you might already have been profiled. Since the downing of TWA Flight 800 in July, U.S. Customs’ profiling procedures have been extended to some domestic flights. If you feel a bit uneasy that you were never told you had been profiled, you have hit upon one of the most critical and widely debated obstacles to better security: the potential violation of civil rights. If detection schemes discriminate on the basis of people’s nationalities, or expose too much of their bodies, passengers won’t accept them and airlines won’t use them.

Even if the profiling criteria do not specify race, religion, or nationality, it doesn’t take much imagination to see how a search might zero in on these categories. Passengers whose ultimate destination is Syria, for example, might be targeted because of the country’s sponsorship of terrorism. But who flies to Syria besides Syrians? This amounts to de facto discrimination, says Gregory Nojeim, legislative counsel at the American Civil Liberties Union (ACLU) in Washington, D.C. “Reduced to its essentials,” he says, “profiling is a stereotype.”

Nojeim can cite many horror stories to prove his point. After the Oklahoma City bombing, Abraham Ahmad boarded a plane from that city bound for Chicago, en route to visiting his family in Jordan. He was detained by government agents in Chicago and London and forced to answer questions about his religion, friends, and family members. At various times he was handcuffed and paraded through the airports. He was strip-searched. His name was given to the media, who drove his wife out of their house. All because he “fit the profile” of a terrorist. For similar reasons, Sam Husseini, a consultant to the American-Arab Anti-Discrimination Committee, was singled out and missed flights three times in the summer of 1993 alone.

“When travelers check in at an airline ticket counter,” says Nojeim, “they don’t check their rights to personal security, privacy, and equality. The Fourth Amendment provides that people, their property, their papers, and their homes shall not be subjected to unreasonable searches and seizures.”

The ACLU also maintains that new x-ray techniques constitute an invasion of privacy. Look at the image of the man on this page. Sure, it shows a gun and explosives. It also shows his penis. Would you want a similar image of your body displayed on a screen for other people to see as you wait to board your flight? “The airport is not a no-privacy zone,’ ” Nojeim says. “We may have catheter tubes in place, evidence of mastectomies, penile implants, and artificial limbs. We expect that we will not be required to show these to others as a condition to boarding an airplane.”

The National Research Council agrees. “Displaying an image of the body on a monitor will be a concern to a significant percentage of people,” its report concludes.

Problems could be lessened by masking portions of the display, using operators of the same sex as the subjects being scanned, and displaying images in closed monitoring rooms. Each approach would add even more cost, however. Software could help by making a Picasso out of a person being scanned, or by making images generic, but progress has so far been limited. Image recognition software that could discern weapons and explosives without operators would help too, but the amount of artificial intelligence required makes this an even tougher challenge, says MIT’s Grodzins.

Though not a civil rights issue, worries about health risks could also make passengers wary. The NRC cites numerous studies indicating that none of the techniques pose health risks to passengers or operators, and that x-ray levels are well within the allowable limits for routine exposure. But both the FAA and the manufacturers acknowledge that some passengers may nonetheless be wary of the new technologies.

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Tagged: Biomedicine

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