Technology and the Transportation Security Administration: An Ethical, Legal, and Practical - Term Paper Example

?Running head: TECHNOLOGY AND THE TSA Technology and the Transportation Security Administration: An Ethical, Legal, and Practical Evaluation Author Affiliation Abstract The Transportation Security Administration is responsible for ensuring public transportation safety. In order to do this, the agency has implemented policies that have come under criticism for being intrusive and a violation of individual rights to privacy. However, these contentions fail to conclusively prove that Advanced Imaging Technology (AIT) body scanning violates moral or legal provisions, or that AIT is ineffective at providing safety to airline passengers. On the contrary, AIT is a moral, legal, and effective practice for ensuring public safety: one which should not be disregarded in favor of concerns about privacy and weak constitutional arguments. Technology and the Transportation Security Administration: An Ethical, Legal, and Practical Evaluation The Transportation Security Administration was developed in the wake of the security oversight involved in the September 11, 2001 terrorist attacks, and it has authority over the security and safety of travelers within the United States. Passed into law on November 19, 2001 under the Aviation and Transportation Security Act, the TSA now works under the Department of Homeland Security instead of the Department of Transportation, under which it was originally created. Charged specifically with the duties of maintaining airline security in order to prevent an attack similar to those on September 11th, the TSA operates primarily in airports that serve many travelers per day. Regardless of these other responsibilities, TSA’s most visible role is in screening and vetting airline passengers before allowing them into the airport terminal (Reid, 2011, p. 86). However, the TSA also represents the safety interests of railroads, buses, mass transit, highways, ports, pipelines, and other national and state-level modes of transportation, which is part of the purpose of the Aviation and Transportation Security Act of 2001. Recently, technologies involved in fulfilling these duties to airline passenger safety have increased in scope, including the recent addition of Advanced Imaging Technology (AIT), which poses various ethical, legal, and practical implications that will be analyzed shortly. The TSA intends for these new technologies to be used on a large scale to detect possible threats to aircraft. Debates about the intrusiveness of these technologies on the privacy of airline passengers often bring two different perspectives: those who favor privacy and those who favor security. Through an analysis of the alleged problems inherent to the new body scanning technologies, it will be seen that these technologies do not pose a threat to privacy and, in fact, serve a higher moral value: that of saving human lives. The Moral Issues: Violations of a Right to Privacy The TSA began developing advanced imaging technology (AIT) in 2007 as a means of simplifying the body scanning process (Rodrigues & Cusick, 2011, p. 290). However, although it is intentioned to protect passengers, some critics believe that the technologies do not protect privacy (Vijayan, 2010). This kind of opposition to body scanning technology is based on a moral evaluation: the TSA ought not to employ such technologies because it inherently detracts from an important human value. To approach this issue rationally, one must first define what it would mean for a piece of technology to be immoral. First, clearly no technology is “inherently” immoral; if the TSA body scanners were used for an unrelated purpose, such as seeing inside a suspicious package, there would be no such claims that it is immoral. Instead, it is claimed that the TSA body scanners are unethical because they violate a fundamental human value: the supposed right to privacy (Gartenstein-Ross, 2011). It is unclear whether such a right to privacy actually exists, especially when that right conflicts with the rights of others to live. If, for the sake of argument, a body scanner actually works to deter a terrorist act, would one say that the supposed right to privacy trumps the more fundamental right to live of some? For an intrusive TSA body scanner to be ethical, it must live up to the expectation that it actually saves lives. This topic will be addressed later in the section on effectiveness, but it is salient to this discussion as well. If citizens are going to sacrifice their value (which is not a right) of privacy, it is clear that the TSA’s moral purpose (of saving lives) must be top priority of any technology it employs (including AIT). On a framework of treating lives as more important than privacy, then AIT is clearly ethical to the extent that it meets expectations. Taken the other way, on a framework that values privacy more than human life, then one’s arguments not only encompass all privacy-violating technologies, but the TSA and security agencies in general. A counterpoint to this perspective was undertaken in February 2010 by Pope Benedict XVI, who condemned the security measures as disrespecting “the primacy of the human person and attention to his or her needs” (Pisa, 2010). In other words, the Catholic Church is concerned that scanners at airports do not respect human dignity as such. However, this occasion provides an excellent illustration of convenient rhetoric. If the scanners at airports, operated by TSA, are successful in preventing a terrorist attack, then the Pope’s criticisms of them are safe. If the scanners at airports fail to prevent a terrorist attack, then the Pope’s criticisms may shift to their ineffectiveness but they are safe nonetheless. Either way, the TSA’s tactics for preventing an attack are open to criticism, which is tautological and therefore unhelpful in deciding whether body scanners are indeed unethical. Given the perspective that the body scanners respect a right to life more so than the value of privacy, it does seem that TSA’s scanning technologies are ethically employed. The Legal Issues: Federal and State Laws A separate but related issue to ethics is that of the legality of TSA’s body scanners. A criticism against the screening technology is that they are “illegal” (McCullagh, 2011). According to Washington D.C. Circuit Court of Appeals Judge Douglas Ginsburg, the TSA is not exempt from laws stating that federal agencies must first notify the public (with reference to the TSA’s unannounced and unceremonious implementation of AIT technologies). However, the AIT technology itself is not in violation of any constitutional rights. The Electronic Privacy Information Center, which filed the case against the TSA in July 2010, argued that the AIT violates Americans’ Fourth Amendment right against “unreasonable” searches (Mock, 2009). The Court rejected this argument, setting a precedent that the TSA’s body scanners do not violate constitutional law. The important distinction in the case is the decision that the TSA violated federal law in the manner in which they deployed AIT technologies, not the AIT technologies themselves. Certain procedures are in place to give citizens a chance to respond and express their concerns over the actions of federal agencies, including the TSA. If the TSA had allowed an open conversation about its controversial technologies, then they would not have violated the law. However, just because the TSA deployed AIT technologies illegally, according to the court, that does not mean the AIT technologies currently in place at over 78 major airports need to be rescinded (Rodrigues & Cusick, 2011, p. 290). On the contrary, the TSA is fully entitled to maintain its current inventory of body scanners; however, according to the court case previously alluded to, the TSA must now ensure transparency and accountability by opening information channels to the public. In other words, the TSA must now notify the public and seek comments about implementing AIT technologies in airports (McCullagh, 2011). In addition, federal laws outside of the Constitution are germane in the case of TSA body scanning legality. The Aviation and Transportation Security Act, as previously mentioned, both created the Transportation Security Administration and granted it authority to screen passengers. The language of the law proceeds as, “The Under Secretary shall (1) be responsible for day-to-day Federal security screening operations for passenger air transportation and intrastate air transportation under sections 44901 and 44935” (Pub. L. No. 107-71, 2001). Clearly, the TSA has the authority to use whatever means they feel is most appropriate for maintaining transportation security; limitations and conditions on this agency authority is not limited in the language of the bill. Although the degree of intrusiveness of a searching procedure is open for debate, the authority of the TSA to conduct searches—even in seemingly unreasonable sorts of cases (such as in children, pregnant women, and the elderly)—is not, since it is given as a federal law (Stitch, 2005, p. 203). Accordingly, one cannot make the case that AIT scanning technologies are legally illegitimate. Fundamentally, moral considerations are related to legal considerations, although morality need not determine legality and vice versa. However, there is something to be said about the moral consequences of making AIT technologies illegal on constitutional grounds (Bovard, 2004, p. 200). The Fourth Amendment challenge to the TSA undertaken in the D.C. Court, like the Pope's criticisms of AIT technology's alleged violation of respect for human dignity, ignores the moral priority that ought to be given to human life above the value of privacy (Cavoukian, 2009). Similarly, these arguments hate the systems in place when they work just as much as when they fail. The moral argument is the primary claim being made against AIT technologies because there is limited legal or political recourse that its opponents can take in the matter. The moral question is not sufficient to change the institutions in place, which leads critics to take another course in their attempt to limit the intrusiveness of TSA screening techniques: the question of whether they are effective or not (King, 2006, p. 125). The Effectiveness Issue: Counter- and Cost-Effectiveness The effectiveness of AIT technologies is a difficult concept to grasp. One can clearly measure the percentage of times a trained TSA representative will recognize a threatened object revealed in a body scan. However, in the field and in terms of saving real lives, there is an inherent difficulty in understanding the results that AIT technology is achieving within its current use by TSA. In other words, there is no way of measuring the number of lives or dollars the TSA saves by implementing any given policy or procedure. And, like the moral question, the question of effectiveness of AIT is salient to its legality. If intrusive body scans involve some sacrifice of the value of personal privacy and invites criticism, there must be definitive proof of its effectiveness and necessity for carrying out the essential functions of the Transportation Security Administration. Consequently, an evaluation of the effectiveness of body scanning technology is an important component of any answer to moral or legal challenges to its authority. In theory, AIT body scans are incredibly effective. They limit the chances of error associated with pat-down procedures, which may not detect the same kind of hidden objects that an AIT scan may detect. With very high resolution imaging, paired with superior training programs, there is little room for doubt when an object is characterized as safe versus when an object is characterized as threatening. Given that even small and hard-to-detect objects can lead to devastating consequences aboard an aircraft, a small margin of error is available to security screening in protecting the passengers. Like the issue of measuring actual quantitative effects as opposed to qualitative deterrence, there is a distinction to be made between a method's effectiveness in theory and in the field. Opponents of AIT technologies make use of this distinction by criticizing the TSA on moral or legal issues, while ignoring the difficulty in conceptualizing the quantitative measurement of the technology's deterrence effects and the practical importance of a method's effectiveness in theory. Two methods of measuring effectiveness are by counter-effectiveness and by cost-effectiveness, which are both quantifiable to some degree. Counter-effectiveness refers to the effectiveness of some course of action relative to an available substitute. One proposed alternative, one that has been utilized by TSA for years, are so-called “enhanced pat-downs,” which refers to feeling passengers in a number of places where individuals would most likely be hiding threatening objects (Golden, 2010).In addition to being more intrusive than a full body scan by AIT technologies, there is a question about whether this method is truly effective. For instance, one might question whether a TSA representative would have been able to detect the December 2009 underwear bomb of Umar Farouk Abdulmutallab given sensitivities of passengers to the intrusiveness of pat-downs already. In response to criticisms of pat-downs, TSA adapted by testing the effectiveness of imaging technologies that do not involve physical contact, which also have come under criticism for being intrusive. Without a viable alternative to body scanning, the TSA is left without any tools to carry out their function as protectors of in-flight passenger safety. Another method of measuring effectiveness is by measuring the financial costs of some course of action relative to an available substitute, and how those costs balance with the benefits derived from it (Barkakati, 2010). Some critics charge the TSA with spending too much money of body scanning devices, with over $266 million of a $1 billion budget stimulus given to the TSA in 2010 going toward various kinds of hazard detectors. Costing nearly $170,000 per device, AIT technologies are very expensive to purchase and install (Fuller, 2010). Compared to more invasive techniques, such as an enhanced pat-down, this cost is almost too much of a burden. However, taking into account the opportunity costs of not enhancing detection technologies, including the financial impacts of a terrorist attack on United States soil, the estimated $1 per passenger going through an AIT device at an airport checkpoint is worth the long-term prevention of attack as well as the prevention of illegal drugs entering the United States (Fuller, 2010). Conclusions and Summaries The Transportation Security Administration’s implementation of AIT technology in the detection of hazardous items at airport checkpoints is legal, moral, and effective in terms of preventing long-term damage to the United States. AIT body scanners are legal because (a) they do not conflict with any provisions of the United States Constitution and are consistent with the purpose of the TSA as laid out in the Aviation and Transportation Security Act of 2001. AIT body scanners are moral because they treat the right to life as superior to the value of privacy, which is the primary route that moral critics of the law take when expressing their opposition to the intrusiveness of body scanning at airport checkpoints. Lastly, AIT body scanners are effective because they outperform available alternatives both in terms of preventing the use of hazardous devices and materials aboard aircraft and in terms of opportunity cost (the cost of the devices in the short-term versus the cost of the potential damages to the United States as a result of a terrorist act). However, nothing in the analysis indicates that AIT technologies, which are prohibitively expensive and require passengers to sacrifice to some degree their sense of privacy and space, are perfect. In fact, the Transportation Security Administration should continue to research and develop safety-enhancing technologies in the age of terrorism: technologies that are cheaper, that require fewer overhead costs, and that do not elicit as much criticism as AIT technologies do. In order to properly ensure the safety of everyone flying within the United States, every passenger must respect and comply with the policies created by the TSA. Right now, with mounting criticism of and skepticism about TSA and its use of body scanning technologies, there is reason to doubt that the public trusts this federal agency with protecting national security. References Barkakati, N. (2010). Technology assessment: Explosives detection technologies to protect passenger rail. Washington, D.C.: DIANE Publishing Company. Bovard, J. (2004). Terrorism and tyranny: Trampling freedom, justice, and peace to rid the world of evil. New York: Palgrave Macmillan. Cavoukian, A. (2009). Whole body imaging in airport scanners: Building in privacy by design. Ontario: Information & Privacy Commissioner. Fuller, E. (2010, November 19). TSA body scanners: safety upgrade or stimulus boondoggle? Retrieved October 16, 2011, from The Christian Science Monitor: http://www.csmonitor.com/Business/2010/1119/TSA-body-scanners-safety-upgrade-or-stimulus-boondoggle Gartenstein-Ross, D. (2011). Bin Laden's legacy: Why we're still losing the War on Terror. New York: Wiley. Golden, F. (2010, October 29). TSA launches 'enhanced pat down'. Retrieved October 16, 2011, from AOL Travel: http://news.travel.aol.com/2010/10/29/tsa-launches-enhanced-patdown-draws-critics/ King, L. (2006). Washington and the world: 2001-2005. Washington, D.C.: University Press Of America. McCullagh, D. (2011, July 15). Appeals court: TSA must rethink airport body scans. Retrieved October 16, 2011, from CNet: http://news.cnet.com/8301-31921_3-20079829-281/appeals-court-tsa-must-rethink-airport-body-scans/ Mock, T. (2009). The TSA's new x-ray vision: The Fourth Amendment implications of body-scan searches at domestic airport security checkpoints. Santa Clara Law Review, 49 , 213-229. Pisa, N. (2010, February 21). Pope Speaks Out Against Airport Body Scanners. Retrieved October 16, 2011, from The Telegraph: http://www.telegraph.co.uk/news/religion/7285996/Pope-Benedict-XVI-criticises-airport-body-scanners.html Pub. L. No. 107-71. (2001, November 19). Public Law 107-71. 107th Congress , 114e . Washington, D.C., United States: 115 STAT. 597. Reid, S. (2011). Criminal justice essentials (9th ed.). New York: Wiley-Blackwell. Rodrigues, C., & Cusick, S. (2011). Commercial aviation safety (5th ed.). New York: McGraw-Hill Professional. Stitch, R. (2005). Iraq, lies, cover-ups, & consquences. New York: Silverpeak Enterprises. Vijayan, J. (2010, January 11). TSA body scanners don't protect privacy, group says. Retrieved October 16, 2011, from PCWorld: http://www.pcworld.com/article/186657/tsa_body_scanners_dont_protect_privacy_group_says.html Read More