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Airport Security Update: You Can Record the TSA

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A jury has just acquitted (also reported here) a man who was accused of crimes that boiled down to “annoying the TSA.”

More specifically, he refused to show his identification to a TSA (Transportation Security Administration) agent, and videotaped the entire incident. He was charged with crimes such as disobeying a lawful order, trespassing, and disorderly conduct, and a jury acquitted him of all charges. The defense didn’t even have to call any witnesses – simply betting that the prosecution would be unable to adequately prove their case. A very complete deconstruction of the whole trial is available here.

I recognize the need for airport security, and I’m all for reasonable measures to ensure that people aren’t able to take weapons onto airplanes. However, it seems pretty obvious that many of the measures taken by airport security amount to little more than theater. And when this theater involves having to choose between letting someone see you naked or feel you up (without even having to buy you dinner), this security theater goes from wasteful and irritating to downright frightening.

On top of that, there’s an increasing movement in the U.S. to criminalize the recording law enforcement officers, even if they’re on duty and in public, where they have no reasonable expectation of privacy. While the police sometimes raise arguments about how allowing bystanders to film them will have a “chilling” effect on them doing their jobs, let’s look at the implications of that argument: “If I, as a public servant, believe that I am likely to be held accountable to my public for my actions, I might think twice before acting.” It boils down to “I might be seen doing things that I’m no supposed to be doing, and therefore I’ll be afraid to do them!”

In a free society, those aren’t exactly arguments we should be entertaining. After all, we WANT law enforcement to be held accountable for their actions.

So, it should be obvious by now that I think this jury did the right thing, and I hope, in the future, juries exercise their right to nullify criminal charges in cases similar to this one. Remember, by the very structure of the jury system, juries have the inherent power to acquit criminal defendants if they believe the law they’re being charged under is unjust, even if the evidence supports the prosecutor’s allegations.

This has been seen in criminal cases involving possession of small amounts of drugs: in areas where public opinion tends against draconian drug laws, acquittals for charges of drug possession are sometimes higher than for other crimes.

Others on this blog have noted that the TSA’s newest practices (full body scans and/or invasive patdowns) raise some serious 4th Amendment issues. I agree, but I think this case cuts deeper than even the Constitution. It’s about us, as a society, drawing a line in the sand that we refuse to cross in the name of security. Ultimately, the decision of how much privacy and freedom we have to give up in the name of security rests with society, not courts or legislatures. We’ll have to think long and hard about just how much freedom, privacy, and dignity we’re willing to give up, just for the appearance of safety.

And if society does eventually decide to draw such a line, it’s just as likely to start in the jury box as the voting booth. I’ve discussed the concept of jury nullification before, and how it is one of the most potent tools that the public has when it comes to rejecting laws that they don’t like. Sure, we can vote in politicians who ostensibly oppose an unpopular law, but that’s no guarantee that it will actually be repealed.

With jury nullification, however, a law or policy nobody likes can be effectively stopped in its tracks. After all, if nobody is ever convicted under a particular law, prosecutors may stop wasting their time charging people under it.

I’m not saying that every action of defiance against the TSA is a good thing. Quite the opposite, in fact – as I said, we need airport security. Obviously, nobody wants to create a situation where it’s easy to bring weapons onto airplanes.

Nor am I some anti-government, sovereign citizen nutcase. I fully recognize that some government intervention is essential to keep society running smoothly. The fact that I believe such intervention would be best kept to a minimum is not, I hope, and extreme position. I simply think that, when the government claims it needs to intervene in some sector of economic or private life, we should seriously consider whether the benefits are worth the intervention.

If it turns out that these body scans become an essential weapon in our transportation safety arsenal (and maybe that’s what the Transportation Security Administration should change their name to. It sounds cooler, and they wouldn’t have to change their logo.), so be it. If it turns out to be a needlessly-intrusive waste of time and money, it should be treated accordingly, and scrapped.

In the age of international terrorism, it seems that we’ve developed a blind spot to costs vs. benefits in the security context. Anything that looks like it might conceivably make a terrorist attack slightly more difficult is a good idea, regardless of its costs. That would be fine, if resources were infinite. But they’re not. Time, money, and effort spent on ineffective measures could have been spent on something with more long-term effectiveness, even if they might not provide the same “if I’m all the way under the covers the monsters can’t get me” reassurance that some current airport security measures provide.

Ken LaMance

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