Metro's random bag searches (I)

by Guest/incoming-front-pager Thomas Nephew

(I): Taborn's bombshell:

In mid-December, the Washington Metropolitan Area Transit Authority, or WMATA -- better known as "Metro" -- and its police force announced a new random bag search policy:

...police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

The randomness of the program is implemented by choosing some secret number N for each site and date, and selecting every Nth person with a bag. As described, the policy allows people approaching a station to decide to refuse the screening -- they just can't then bring their bags with them:

Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.

Opponents of the policy (including myself) deemed the policy unconstitutional, ineffective, and misguided -- security theater that demands public acceptance of routine, suspicionless, unaudited (and therefore possibly profiling-based) searches for zero security in return.

Thanks in part to a good deal of mobilizing by opponents -- including an online petition and an evening of nearly unanimous public opposition -- WMATA's "Riders Advisory Council" (RAC), the institutional voice of Metro users, overwhelmingly passed a resolution in early January calling on the Board to halt the program, and require their police department to consider alternatives in consultation with civil liberties advocates.

Be observed... be watched As welcome as the 15-1-1 RAC vote was on January 5th, the real news may have happened earlier in the same meeting.

During a brief question and answer session, Metro Transit Chief Taborn confirmed that bag search refusers would "be observed... be watched" for their decision by law enforcement:

Metro Transit PD Chief Taborn answers questions by Riders Advisory Council members Diana Zinkl and David Alpert about the random bag search policy begun in December. (Excerpt transcript)

DIANA ZINKL: And also, could you also clarify, one question that came upat our last meeting, where there was some confusion - the answer either from Deputy Chief Pavlik(?) or the other officer who was in attendance -- is what happens if someone's approaching a rail station, is stopped, does not consent to the search, turns around and leaves and goes to get on the bus.

CHIEF TABORN: What happens is that according to our policy, that person is free to go. But with regards to law enforcement initiatives, there will be some actions, there will be some observations, because we need to establish why that particular person chose not to do it. So there will be some activity that's afoot.

DIANA ZINKL: Can you give us some specificity -- given that I think everyone of us in this room has been in the situation that if there's something that's not working with the rail system you go and get on a bus -- given that this is a very likely scenario, can you be a little bit more specific as to what's actually going to happen to that person and what they will be... what their experience will be? Because - I think - the reason I'm asking is that I think this is a very real scenario, and the answer that we received, that was received on Monday, indicated a fair amount of ambiguity and uncertainty from the officer...

CHIEF TABORN: Well, I can tell you without any uncertainty that that person would be observed. And what that means to you is different than what it means to me, but that person would be observed.

DIANA ZINKL: Well, could you clarify what 'be observed' means?

CHIEF TABORN: Be observed. Be, be observed. Be watched.

DIANA ZINKL: And when they try to get on the bus, what would happen?

CHIEF TABORN:That will be activities that law enforcement will use just as any regular law enforcement has to establish probable cause, to find out who, what, where, why, and when.

As I wrote at the Montgomery County Civil Rights Coalition blog, it got worse. When RAC chair David Alpert followed up, Chief Taborn elaborated that “[a]t some point in time, as we work with the FBI and as we work with the Department of Homeland Security, we establish why” the person refused the search.

It may not be obvious that this was a bombshell, but Chief Taborn seems to me to have admitted Metro Transit PD is engaged in an illegal program -- even under the permissive 2006 MacWade v. Kelly court ruling WMATA relies on to claim its program passes constitutional muster.

More on that in my next post.

[adapted from a post at newsrackblog.com]

Guest/incoming-front-pager post by Thomas Nephew, NOT BY GARY FARBER

Comments

[Anthony Damiani]

Man. It's like we need a Constitutional amendment to prohibit unreasonable searches-- for example, those without a warrant specifically authorizing them, based on probable cause.

[jrudkis]

How are these proposed searches different Constitutionally from required searches for boarding an aircraft?

[wj]

I wish I was surprised that security theater is continuing to grow.

I'm not sure whether the driver is to provide something visible (and obnoxious enough not to be missed) for politicians to point to, or whether the driver is a burning desire for more power/control over the population. But either way, especially since it demonstrably is ineffective, I would like to see it rolled back.

[Turbulence]

especially since it demonstrably is ineffective, I would like to see it rolled back.

Ineffective? On the contrary, plans like these are very effective, and the fact that they end up getting blocked by the courts or outraged citizens is a feature, not a bug. Sooner or later, someone will commit an act of terrorism on or near or in some tenuous way associated with the DC Metro. When that happens, there will be calls to blame the Metro or city leadership. But idiotic plans like this give the leaders something to point to: they can say "see? we tried to prevent this attack, but the courts/citizens wouldn't let us". Actually getting your security plan in place is worse because then people really will blame you when it inevitably fails. Fortunately, the leadership is smart enough to only propose such outrageously illegal plans that there is no danger of that.

As you can see, these plans are very effective at preserving the careers and job security of the Metro and city leadership. And really, what other effectiveness might matter?

[ral]

The randomness of the program is implemented by choosing some secret number N for each site and date, and selecting every Nth person with a bag.

Apart from the overall appalling nature of this ahem "program," they seem to be confused about randomness, especially as applied to security.

How hard would it be for an attacker to observe the pattern and evade it? If it's "every Nth person is searched", pretty easy.

Maybe this revelation of the process is just misdirection (we can but hope :-).

[jrudkis]

The every nth pattern is specified to prevent profiling. It is similar with DWI road side stops where they either check every car, or every nth car.

[Thomas Nephew]

Right... but one point here is that we have to take on faith that they are in fact just selecting every Nth person. -- Thanks for all these great comments.

[Thomas Nephew]

[Housekeeping note, which I hope won't distract from the post and these comments:
First: thanks, Gary for posting this! Second, I want to clarify that I understand these posts to be an audition, not some kind of done deal. I'm fortunate to have the chance to get even a couple of posts on this site, about an ongoing civil liberties issue I've been working on.]

[Thomas Nephew]

A.Damiani: "Man. It's like we need a Constitutional amendment to prohibit unreasonable searches-- for example, those without a warrant specifically authorizing them, based on probable cause"

-- wouldn't that be great? :)

jrudkis: "How are these proposed searches different Constitutionally from required searches for boarding an aircraft?"

Stay tuned for a possible answer in part II of this exciting series. A wider point is to think about what we all mean by "constitutionally". People often tend to mean "what the Supreme Court and lower courts affirm". With rulings from Korematsu to Dred Scott to Cruikshank, though, I feel OK in saying: no, those guys get it disastrously wrong a *lot*.

[russell]

Hey Thomas, good post, and welcome.

I guess I have the same question as jrudkis: how are these different from the kind of searches we have for airplane travel? Or, searches you might submit to when entering a sports stadium or concert venue?

[Ugh]

how are these different from the kind of searches we have for airplane travel?

Only difference is that airplane travel everyone is searched, rather than (supposedly) random. Thus, they are suspicionless and, one would therefore think, unconstitutional, but I suspect Thomas will get into this in his next post.

Or, searches you might submit to when entering a sports stadium or concert venue?

Private property/events that the owner/event holder can condition your entry to, including searches (this gets a little messy when holding an event at a public venue, but that's the general distinction, IIRC).

[Thomas Nephew]

Yes, Ugh, that's kind of where I was headed. I think they're all suspicionless searches, whether they're done to 100% or 10% or .1% of riders, passengers, or people entering a building. They're all equally questionable in that regard.

I don't mean to keep people waiting for the rabbit out of the hat, esp. since it's maybe not much of a rabbit.

To me, a difference between Metro and airport use, or museum use, is that the latter are (in general) discretionary, where the former is a prerequisite of everyday life for a large proportion of the population in the DC area. That is, I can choose not to enter a museum. I can choose not to fly to Hawaii. Lots and lots of us in the DC area can't really choose not to use Metro. It turns out that "discretionary" idea was part of why courts OK'd magnetometers at airports once upon a time: kind of 'drive or take the train if it bugs you.' This is more inescapable.

That may not seem like the kind of rarefied argument a civil liberties expert would make, to which I say "busted. I'm not a civil liberties expert." But the Metro program seems to me so different in scope -- both of what's being affected and what's being "protected" -- as to be not different in degree, but different in kind from the air travel or building entrance examples.

[fiddler]

I may be mistaken, but aren't searches at airports done by employees of private security companies, as opposed to governmental (or quasi-governmental) employees? Also, airlines are corporate, not governmental, entities even if the airports are run by municipalities, and I'm not sure all of them are.

WMATA, however, is run by representatives of the local governments served in DC, Maryland and Virginia; it is governmentally owned and operated. It is supported by local taxation in those municipalites -- Fairfax and Arlington counties and the city of Alexandria, VA, Montgomery, Prince George's and Howard (I think) counties in Maryland, possibly other small municipalities I am forgetting to list, plus DC, which as a federal city has its government overseen by the federal government as well as the city council and mayor.

I don't know if that would make a legal difference but I thought it should be mentioned.

[Nell]

Was going to go to Thomas' blog to congratulate him on his excellent statement at yesterday's press conference announcing the fight-back on bag searches, but this is a better spot. Thanks so much for being blunt and un-nuanced!

[jrudkis]

I may be mistaken, but aren't searches at airports done by employees of private security companies, as opposed to governmental (or quasi-governmental) employees?

They used to be, but are now members of the TSA, Federal Employees.

[Bernard Yomtov]

The every nth pattern is specified to prevent profiling. It is similar with DWI road side stops where they either check every car, or every nth car.

OK. But.

First of all when people are coming into the station one at a time this system is obviously stupid, as ral says. When you are driving you don't get to observe 50 or so cars go through the checkpoint to determine N, and you often can't control your own number.

Second, it won't prevent profiling. Suppose a lot of people are coming into the station at once. Seems to me that would happen pretty often, like twice a day Mon-Fri. Which one is the 14th entrant? Is it the middle-aged white guy in a suit holding a briefcase, or the sort of brown-looking young guy next to him, carrying a backpack?

[Thomas Nephew]

Well, the sort of brown-looking guy of course.

Again, absent an independent umpire actually verifying this "every Nth" rule day in, day out, it's kind of moot as far as I'm concerned. That is, I don't believe them and they can't convince me to.

[liberal japonicus]

Great post and sorry the open thread pushed it down.

I'm wondering what you think of the growing spread of security cameras. Perhaps a future post?

[wj]

Lots and lots of us in the DC area can't really choose not to use Metro. It turns out that "discretionary" idea was part of why courts OK'd magnetometers at airports once upon a time: kind of 'drive or take the train if it bugs you.' This is more inescapable.

Well, I could choose not to fly for vacation. But if I have to fly on business, I can "choose" an alternate means of transport just like you folks in the DC area chan "choose" to walk if the searchs bug you. That is, not really. In short, if the courts relied on that kind of distinction, they have succeeded in "getting it wrong" here, too.

[Thomas Nephew]

I'm suggesting it's a reason to be even more against Metro bag searches than you are against airplane or museum searches. However, the US court system has not yet accepted the "Nephew Doctrine." :)

[Thomas Nephew]

@Nell: Thanks! Comments are much appreciated over at the Montgomery County Civil Rights Coalition blog post you mentioned, too. If so inclined (esp.if you're from the area), there are a variety of ways to help out there -- joining an ACLU petition, liking Facebook pages, etc.

[fiddler]

wj, it's not too easy to 'choose' to walk as an alternative to Metro if Metro is taking you to work in Virginia from home in Maryland, or from one end of a particular line to the other, which could be 20 or 30 miles. Local buses complement Metro but don't duplicate it; local taxi companies are too expensive for commuting. When the subway trip is well over an hour, walking isn't really an option.

[Thomas Nephew]

Hi fiddler! FWIW, I read wj as agreeing with you on that and is putting "choose" in sarcastic quotes.

[liberal japonicus]

Thomas, another thought, I'd love to know how y'all are thinking of social media, facebook etc. and what seems to be working out and why.

[hairshirthedonist]

...even if the airports are run by municipalities, and I'm not sure all of them are.

The major NYC-area airports are run by the Port Authority of New York and New Jersey (PANYNJ), at least Newark and JKF for sure without googling. I'm not entirely sure about LaGuardia off the top of my head. Atlantic City's relatively small aiport is run by the South Jersey Transportation Authority, which also runs the AC Expressway, a toll road. The Delaware River and Bay Authority runs the comparably sized New Castle Airport, along with the Cape May-Lewes Ferry and Delaware Memorial Bridge, which is tolled, like the bridges and tunnels the PANYNJ runs. Mostly the funding is from tolls and federal grants, to my knowledge, in such cases.

[hairshirthedonist]

Seems New Castle no longer has commercial air service, leaving poor Delaware with no commercial flights. :(

[wj]

Thanks, Thomas. My point exactly. (I really gotta figure out a good sarcasm icon.)

[Thomas Nephew]

@liberal japonicus: we have online presence with Facebook "Montgomery County Civil Rights Coalition" and Twitter (@mococivilrights). There's also a dedicated "Stop Random Bag Searches on Metro" facebook page.

Of the two, so far Twitter has done us more noticeable good in that sometimes a blog post has been picked up and ricocheted around the Twitterverse.

Both Facebook pages are rather thinly populated so far -- but everyone is welcome, please feel free to change that. While it's a local issue, it's near-national in a way because Metro is such a visible, flagship institution. As I try to argue in part 2, above, the arguments and process echo larger scale ones about various and sundry "national security" and "counterterror" measures. So please drop by, "like" the page, and share it to your Facebook wall.

I think both Facebook and Twitter are potentially very valuable to this kind of thing. They're not magical, though; to really get somewhere with them, it's been my experience that you have to work at it -- recruiting new members, trying to get them to, providing fresh material.

I'd like to do better at it, but the reward-to-effort ratio is still low compared to other ways of pushing back; I'm hoping recruiting a dedicated admin for those pages will help.

[Gary Farber]

Thus, they are suspicionless and, one would therefore think, unconstitutional

I'm pretty sure there's nothing in the Constitution that guarantees a right to have a private corporation fly you on their private aircraft.

[Martine Zee]

The fact that "purses" - and that they get to define what a purse is - are excluded from the search random counting gives them a way to always wind up on the brown guy's bag...

[Ugh]

I'm pretty sure there's nothing in the Constitution that guarantees a right to have a private corporation fly you on their private aircraft.

All those junk-touchers at the airport work for the airlines?

[Guy too pissed to use his normal name]

This entire policy enrages me so much I am considering doing the following:

Find a Metro station where bag searches are occurring. When they ask for mine (and I'll re-enter as many times as it takes), I'll refuse and leave the station, but stand just outside it. If anyone follows me, I will just remain where I am and continue to refuse to let them search my bag. When they inevitably beat my ass to a pulp, I'll have 3 friends standing by with their phones recording everything.

For all their tough talk, Americans have become a bunch of docile little ninnies in the face of authority. I doubt this video will change this too much (many will probably cheer it), but if it changes a good number of people's minds, or at least gets them out in the streets until this ends; it will be well worth it.

This shit ends now, or none of us deserve any of our remaining freedoms.

[Guy too pissed to use his normal name]

And just to be clear: I am NOT, repeat NOT advocating violence of any kind on my behalf. Rather, I want to hang themselves with their own.

[Guy too pissed to use his normal name]

Urgh....left out a "them" in that last sentence.

Signing off for the night:

Guy too pissed to use comments preview feature.