Beacon Broadside

Today’s post is from Frederick S. Lane, an author, attorney, expert witness, and lecturer who has appeared on “The Daily Show with Jon Stewart,” CNN, NBC, ABC, CBS, the BBC, and MSNBC. His fifth book is American Privacy: The Four-Hundred-Year History of Our Most Contested Right. For additional information, visit www.FrederickLane.com

On Christmas Day, Yemeni student Umar Farouk
Abdulmutallib nearly blew up a flight from Amsterdam to Detroit using three
ounces of the explosive PETN sewn into his underwear. Only a faulty detonator
prevented more than 300 people from perishing. As is so often the case in
instances like this, the only real casualty of the abortive terrorist attack
will be personal privacy.

Just a few days after the attack, the Dutch government
announced that all passengers emplaning for the United States will be required
to go through a “full body scanner.” The more technical term is a
“backscatter X-ray,” a device that uses high energy X-rays to scan
under an individual’s clothing and reveal whether they are concealing any
weapons or contraband. If Abdulmutallib had been required to go through such a
device, security experts say, it is likely that technicians would have detected
the presence of the PETN in his underclothes.

Since the 9/11 tragedy, the Transportation Security
Administration has been pushing for the installation of full body scanners
around the nation, but the roll-out has been slow. Currently, just 19 airports
are using a total of 40 machines, although TSA has another 150 ready for
installation in the coming year. The agency is also planning to buy an
additional 300 machines, each of which costs between $130,000 and $170,000.

The devices have sparked opposition from a variety of
quarters, chiefly due to the fact that the backscatter x-ray technology is
capable of producing highly detailed images of the body of each person who
steps into the machine. The images are so accurate that the American Civil
Liberties Union describes the experience as a “virtual strip
search.” A European child rights advocate believes that the
images are so revealing, in fact, that scans of teens and pre-adolescents could
qualify as child pornography.

Machine designers have attempted to address privacy
concerns by making it impossible for the person operating the machine to see
the traveler being scanned, and by making sure that the images themselves are
not stored or saved. However, a quick search for “full body scan” on
Google Images will make it perfectly clear (pun intended) as to what the issues
are.

For those edgy about the possibility of grainy gray
full-frontal (and vaguely space alien) images of themselves floating around the
Internet, the alternative is not much better. TSA protocol calls for pat-down
searches for those who decline to go through the full body scanner; since 2004,
the ACLU has been soliciting reports of pat-down abuses, ranging from
inappropriate comments and touching to mandatory disrobing without proper
privacy screens.

Is there an alternative to spending hundreds of millions
of dollars on technology that might marginally increase passenger safety but
most assuredly will decrease the privacy of those compelled to submit to a full
body scan? Ironically, the answer might lie not in more invasive technology but
less clothing.

Back in 2003, a small travel agency in Houston, Castaways
Travel, created a stir by operating the first Naked Air (NSFW) flight from Miami, Fl to Cancun,
Mexico on May 3, 2003. The one-off (or all-off, I guess) event ferried 90
intrepid passengers to and from to the Castaways Travel Nude Week held at the
El Dorado and Hidden Beach Resorts in Cancun. This was not a true naked flight;
pursuant to various uptight FAA regulations, the flight crew remained clothed
throughout the flight and passengers could not disrobe until the plane reached
cruising altitude (roll-your-own joke here). When the plane began descending
into Cancun, the passengers were required to get dressed again. Five years
later, a German travel agency called OssiUrlaub announced that it would book
flights for nudists (in Germany, nudism is known as
“Freikörperkultur” or “free body culture”) to the Baltic
island of Usedom. As in the U.S., passengers were require to remain clothed
until take-off.

Maybe the nudists were on to something. Maybe true
airline security only lies in stripping away our social conventions (and
clothing), and relieving TSA of the challenge of checking both people and
luggage. We already are required to voluntarily remove jackets and shoes before
going through security; nearly complete confidence in the harmlessness of our
fellow passengers is only a couple of clothing layers away (although as any
drug mule will tell you, it’s probably impossible to be absolutely confident that
someone has not hidden a dangerous substance somewhere).

Can the concept of personal privacy be reconciled with
the idea of naked air travel? Sure. As I discuss in American Privacy, the
essence of privacy is choice — the choice of what information about oneself to
disclose, the choice of how that information will be used, and to whom it will
be disseminated. For the founding fathers, privacy was embodied in the ability
to choose one’s religion and associates, to choose to refuse entry to
government officials absent a particular warrant, and to choose to remain silent
when charged with a crime.

Those constitutionally-protected choices are the
foundation of liberty. (Not all of the founder’s choices, admittedly, made it
into the Constitution. Ben Franklin, for instance, was a big fan of “air
baths” — sitting naked for an hour or so by an open first-floor window in
his London home.)

Wide-spread use of fully body scanning technology is designed to maintain the illusion of privacy while in reality stripping it away.

Obviously, air travelers consent to luggage and
magnetometer searches in exchange for the promise of a safe flight, so some
loss of privacy is inevitable (who hasn’t wondered if TSA employees are amused
or titillated by our wardrobes, our reading materials, our cosmetics and
emolluments?). But backscatter x-ray images effectively destroy our control
over very personal information about ourselves, information that we currently
reveal to only a small number of people. As anyone who has followed the rise of
the Internet is well aware, even marginally salacious images have a tendency to
wander into the wild; because these images can be saved and disseminated, they
inevitably will be. The only way to prevent that from happening is not to take
them in the first place.

But, a prudish critic undoubtedly will reply, how is a
fuzzy albeit explicit x-ray photo more invasive to personal privacy than
spending an hour or two naked in the presence of dozens of strangers? The
answer, I think, is two-fold: such an arrangement would maintain one’s ability
to control the disclosure of one’s intimate personal appearance, while keeping
everyone on an equal footing relative to each other and the government. Yes,
various strangers would see information about us that is normally private, but
the dissemination of that information would be limited to the equally naked
people on the flight, for a limited period of time, and for a limited purpose
— a safe flight. Any such flight, of course, would be designated an absolute
no-camera, no-imaging zone, with offenders permanently barred from ever flying
again. Contrast that scenario to waking up one morning and finding out that
your supposedly secure full-body scanner photo has been posted to http://www.XXXrays.com for the whole (clothed) world
to see.

Admittedly, this idea is mostly facetious. There are
probably fairly few people right now willing to fly the friendly sky totally
starkers when a seemingly less invasive alternative exists, and the practical
and social impediments to naked flights are obviously significant. But it’s not
totally out the question — social mores and long-standing conventions can
change quickly, when the pressure is great enough.

Witness, for instance, the changes in the centuries-old
practice of communion in an era of the H1N1 virus and other high-profile
diseases.

Our society already wears far less clothing, on average,
than just a generation ago; how much modesty and privacy are we really
maintaining anyway?

More seriously, the TSA’s push to roll out more full-body
scanners should spur us to ask two important questions that don’t get discussed
thoroughly enough: Should we continue to put faith in increasingly expensive
technology to protect us, given the seemingly infinite ways in which competing
technologies can be used to attack airline flights?

And is it in our best long-term interests to yield more
and more control over our private information to the government in the equally
futile pursuit of perfect security? As difficult as it is to say, the pervasive
loss of control over our personal information is a far greater threat to our
society as a whole than the suicidal impulses of a radicalized student.