Original author here... thanks for posting! :) I filed the first lawsuit against the TSA's nude body scanners when they became primary screening in 2010, and you may also remember me from my "How to Get Anything Through TSA Nude Body Scanners" video. Today I filed suit against New York City for attempting to introduce street body scanners that can look under your clothes from afar. It is unfortunate that it seems that government at all levels is always in need of a fresh reminder that the citizens for whom it exists demand privacy, and that each technological advance is not a new tool to violate our privacy. However, as often as proves to be necessary, we will give them that reminder.
This seems to relate to using devices to detect things inside your car (dogs) or devices to detect growing lamps in your house (unconstitutional search).
Everything I learned in high school civics class seems to be obsolete when it comes to our Constitutional rights: "bong hits for jesus", "administrative" searches (body scanners), and now street searches.
Why is it the argument from ignorance/lack of imagination via fear is so compelling? "We need to do X to stop Y." Where Y is something very remote but really scary.
What doesn't make sense about this decision is its clear lack of constitutional basis. How does an opinion (via statute) on illegal drug use conflict with a constitutional amendment?
I have always been confused by this, as well. IANAL, but the reasoning seems to be based in the need of educators to reduce disruption and offensiveness, at the cost of protected speech. This wikipedia article [1] does a good job laying out the history of opinions on the subject.
>Morse initially suspended Frederick for five days for violating the school district's anti-drug policy, but later increased the suspension to ten days after Frederick quoted Thomas Jefferson.
Not more than the average citizen. It actually shocks me that the TSA has never seemed to recognize me, especially in light of the fact that my name is in front of them to see and I always opt-out (except when embarrassing them on video, of course ;)).
The distinction you are trying to make is not between emitting and not emitting radiation - most of these scanners emit some form of electromagnetic radiation.
The distinction you're trying to make is between ionizing radiation (x-rays; causes cancer) and non-ionizing radiation (all other sorts of electromagnetic radiation including visible light, infrared, microwaves, and so on; doesn't cause cancer).
The TSA currently has some scanners that scan using x-rays and some that scan with non-ionizing radiation.
A regular boring old security camera is also a scanner that emits non-ionizing radiation - most of them use infrared LEDs to illuminate at night. If you could see into the infrared it would look like every security camera has a big flashlight mounted next to it, shining on you. So the target, you, gets irradiated with non-ionizing infrared rays, which bounce back to the camera and are recorded. Using different wavelengths of illumination, you find that some of them penetrate clothes easily to see what's underneath. That's what the NYPD/security apparatus are interested in.
No, that's not the distinction I'm trying to make. The NYPD scanners, as best I can tell, are PASSIVE scanners which means they emit NO radiation (any moreso than your digital camera "emits radiation"), ionizing or non-ioninzing. They simply measure the terahertz emissions (and reflections thereof) of other objects -- they do not introduce their own terahertz waves.
I'm not defending the scanners (obviously)... I just want the case against them to be clear and sound.
I'm pretty sure you're mistaken. Terahertz waves are absorbed by the atmosphere, so those emitted by the sun don't reach the Earth's surface. So a terahertz scanner has to emit its own radiation.
Infrared radiation (e.g., from body heat) is in the terahertz range[1], and might be what these sensors are picking up. And there are definitely passive sensors for infrared, e.g., night vision goggles.
Not quite as simple as that. Terahertz != Short Wave Infrared != Midwave Infrared != Longwave Infrared ("thermal"). These all require different photosensitive elements in your detector. They also have extremely different atmospheric absorptions. [1]
These particular sensors might indeed be passive, but it would limit their range and SNR. Be wary of manufacturers simply selling the emitter as a second SKU to garner the label passive on their detectors.
Oh. Well, in that case it seems to me that the objection to them can't be that they're invasive. We have a well-established principle that says it's okay to take photographs or video of people in public places where there's no expectation of privacy. I'm not sure I see how the fact that this uses non-visible wavelengths removes it from the scope of that principle. Can you explain that?
(I'm sympathetic to your goals here, but I think the tough questions need to be asked. They certainly will be in court.)
The simple answer is that most people expect clothing to provide privacy for what is kept under them (such as your wallet, cell phone, genitals, etc). Now when the day comes that everyone normally wears augmented reality glasses that can see terahertz / infrared radiation, and that one would normally check themselves out in a mirror with such glasses before going out, then I guess there would be no expectation of privacy for what is under you clothes.
IDK if a crowd would make them less effective, but there is certainly ample opportunity for false positives -- or worse, cops pretending to get a false positive to justify a manual intrusion.
Playing Devil's Advocate here: how is this comparable to "nude" body scanners? From the demo images, it seems to produce an abstract outline except for the shapes that, I'm assuming, are too dense to be organic. In concept, how is this different than being forced to walk through a metal detector? Both this visual body scanner and the metal detector only provide vague indications of what you have hidden under your clothes.
From a pragmatic point of view...maybe I'm misunderstanding the technology, but it seems prone to a wide range of false positives...to the point that using the scans to justify apprehending someone is not much better than stop-and-frisking because a person looks "suspicious"
> In concept, how is this different than being forced to walk through a metal detector?
Well, you generally have a choice (kinda) to walk through a metal detector. People should be protect from random searches while walking around the streets. At one time there were very specific cases where you had to submit to a search -- one being hot pursuit.
I guess that's true. I forgot that the NYPD can search through all of your stuff when you enter a subway, but you have the right to refuse and just not take the subway (at least at that station)
In NYC the subway is critical infrastructure, as important as electricity or water, denial of its use should not be taken lightly.
Denial of this service to people who would not submit to a search, IMO, makes this highly coercive and the search can no longer be considered strictly voluntary.
One has to remember that having seen the flip side of the urban coin, New York City has taken the stance that quality of life ought to be enforced via any means necessary: legal or extralegal. Both stop and frisk as well as the bag searches on the subway do not pass even a cursory constitutionality examination, but that doesn't seem to bother anyone.
> Both stop and frisk as well as the bag searches on the subway do not pass even a cursory constitutionality examination, but that doesn't seem to bother anyone.
Correction: "s/anyone./white people, and we don't pay much attention to whining from those other people./"
The point of this was that the cops were supposed to stop and talk to people (685,724 in 2011) and frisk those if the officer is reasonably suspicious that the person has a weapon that could harm the officer (381,948 in 2011). Of those, 7,257 have a weapon. Have you ever been interrogated by a policeman? Should you be put in that position every day?
All on point. These new scanners essentially allow the NYPD to conduct virtual stop-and-frisks, and now the public won't be able to sue them because they won't even know they're being searched!
7,257 out of 381,948... wow. With a success rate as abysmal as that, it is a wonder that we still take a police officers "gut instinct" as seriously as we do.
Most of the rest of those 382K searches weren't victims of mistaken "gut instinct" but rather officers knowingly searching them without cause. NYPD pressures its street cops to perform these searches using quotas (which they refuse to call quotas).
> Denial of this service to people who would not submit to a search, IMO, makes this highly coercive and the search can no longer be considered strictly voluntary
I agree with you, which is why in the grandparent post i said "kinda." I think it is a HUGE constitutional stretch to not have freedom of movement on public transportation systems. Roads and sidewalks are public transportation systems, so why shouldn't we have constitutional protections on public subways/buses?
The next level of chipping away at this is to have quasi-goverment agencies (government owned corporations, etc) like the one controlling the GW bridge. It pissed me off when the GW bridge used to have signs that said "Photography is prohibited." I really wanted to start a website collecting photographs of the GW bridge, just to show how useless the ban was.
I wouldn't even consider Port Authority to be "quasi-government" -- it's essentially a collaboration of the governments of NY and NJ.
Luckily, those photography signs were removed since they cannot be constitutionally enforced. There's actually a great guy in Miami now (no, not me ;)) who fights battles about photography all the time. He recently got his ass kicked bt gov't security contractors for taking pictures of a train track. His site is photographyisnotacrime.com
In NYC the subway is critical infrastructure, as important as electricity or water, denial of its use should not be taken lightly. Denial of this service to people who would not submit to a search, IMO, makes this highly coercive and the search can no longer be considered strictly voluntary.
Being a frequent user of BART (SF Bay Area Rapid Transit), I understand where you are coming from about how so many people have come to really rely on the public transit systems. But I don't think the NYC subway or BART is anymore critical than air travel. If you were not able to take the subway, you do have other options (bus, cab, walk, etc). Yes... those other options are a lot less convenient and/or more costly, but the same can be said of the alternatives to air travel (bus, train, car, etc).
Every time I go through the Trans-Bay Tube (the BART tunnel under the bay that connects all East Bay BART lines to San Francisco), I think "imagine the chaos it would cause if a suicide bomber detonated a bomb on a train in the tube." So many people use this to commute in both directions, the Bay Area would screech to a halt. That would have devastating effects on the economy (both locally and nationally). I imagine the same can be said if that happened in one of the subway tunnels. I don't think it is too far out of "reasonable" to want to protect them like we want to protect airplanes. That being said, the TSA is a huge failure and should not be used as a model for how to protect the railways.
> Being a frequent user of BART (SF Bay Area Rapid Transit), I understand where you are coming from about how so many people have come to really rely on the public transit systems. But I don't think the NYC subway or BART is anymore critical than air travel. If you were not able to take the subway, you do have other options (bus, cab, walk, etc). Yes... those other options are a lot less convenient and/or more costly, but the same can be said of the alternatives to air travel (bus, train, car, etc).
These forms of transit aren't even close in comparison. They serve different kinds of traffic density, the cost to ride is not even in the same ballpark, and it is NOT feasible to travel around NYC without access to the subway unless you have a large amount of money to spend on cabs (chain bus transit is not time effective for traversing boroughs).
In fact, the NYPD relies on the fact that traveling in any way other than subway is so much of a PITA that people will mostly accept a subway search. Those searches are at the discretion of the officers present, which as we've seen with stop and frisk becomes a racist, classist implementation.
Really it comes down to the fact that many people rely on all of those transportation methods to do things like work, study, visit family, etc., and can't do it another way, because of time, money, or whatever. Under those circumstances, any government hoops to jump through should not be considered voluntary and consensual.
The NYC subway system is particularly sensitive to this, as others have pointed out, because so many people use this to work every day. You can say the bus is an alternative, but what about when they make a requirement to get on the bus? (TSA has already been caught at Greyhound stations!)
...or looked at from an entirely different angle, why should there be people trying to determine if I have a gun in a bus, on the subway, or on the streets of New York? Aren't guns legal in America? The fact of the matter is that it is so impossible to lawfully carry a gun in NYC that the cops, now using these scanners, presume you can't have one. Imagine a Texas sheriff with a scanner. "Excuse me sir, I've scanned you and you have a gun on you." "Yeah, so?"
I don't disagree with your last paragraph but I'm not sure what your point is except expressing a tautology. Let's pretend that there was no way to hide a gun (Mayor Bloomberg bans clothing in the summer as a way to curb the problem of people hiding high fat snacks in their pockets)...are you saying that police should not take notice of people carrying firearms, give the very low incidence of legally opened firearms?
How else could they enforce the city's laws, besides waiting for someone to actively commit a crime with the gun before they can ask if the gun is legally owned?
That's exactly what I'm saying. The carrying of a firearm should not be considered evidence of a crime in progress in and of itself. Nowhere else in America, save for NJ, IL, and DC, is it unusual for someone walking down the streets to be in possession of a firearm. Lawful firearm owners should not be harassed to prove their lawful status at every turn. The police can ask questions when they have reasonable suspicion.
> "Nowhere else in America, save for NJ, IL, and DC, is it unusual for someone walking down the streets to be in possession of a firearm."
Right, so we've established that legal firearm ownership is vastly outnumbered by illegal firearm ownership in the above places, and that seeing a legal firearm on the street is in fact extremely rare.
So... you live in an area where there is a substantial known presence of illegal guns, that isn't balanced by a substantial ownership of legal guns. When you see a gun, how is it not at all suspicious?
I do not see your conclusion as a logical extension of constitutional principles, it seems more informed by your own stance re: gun ownership. The constitution grants the right to search upon reasonable suspicion - I'm unsure how a gun's appearance in a place where there are almost no legal ones fails that bar.
Whether or not NY should have such strict gun laws is an entirely separate debate - as it stands it seems perfectly reasonable for the presence of a gun to be suspicious.
"imagine the chaos it would cause if a suicide bomber detonated a bomb on a train in the tube.[..] That would have devastating effects on the economy (both locally and nationally)"
A bomb of the sort that would fit into a backpack would probably disable the car the bomber was riding it, kill people immediately near the bomber, injure folks farther away in the car, and do pretty much minimal-to-no damage to the tracks or tunnel. In the worst case, the affected tunnel would be out of commission for a few days/couple of weeks while the tracks were cleared and everything would get back to normal.
I can imagine all sorts of bad things. That doesn't mean we have to try to protect against all of them all of the time. You can reasonably protect against black swan events, and trying to do so is costly in so many ways: money, liberties, convenience, etc.
Everybody is so afraid of dying that they don't dare to live.
RE: loss of the transbay tube. The Bay Bridge carries roughly the same number of commuters as the transbay tube. In the 1989 earthquake part of the bridge collapsed and it took several weeks to repair. The Bay Area did not screech to a halt. Sure we were inconvenienced and there was some economic damage, but we coped.
In much the same way as a public park is a piece of the public infrastructure, and so no one ought be denied use/be forced to assent to a search prior to using, except for constitutional cause, public transit systems ought follow the same rules.
From what I can tell these devices cannot look under one's clothes. The image is just too blurry. In fact, these scanners could be considered cameras that capture light outside of the visible spectrum. Are we to now say that one can't take photos in public? That seems to be quite extreme. I would like to preserve my right to do so, even with an infrared camera.
Of course it will. And let me guarantee you this: the city will not start by defending the merits of the scanners, but by doing everything it can to get my case dismissed before it has to do so.
