Tag: department of homeland security

Fourth Amendment Gone to the Dogs—and to Lasers?!

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. We homed in on the major precedent, Caballes, to illustrate the weakness of the “reasonable expectation of privacy” test that originated in United States v. Katz (1967).

In Illinois v. Caballes, 543 U.S. 405 (2005), this Court did not apply Katz analysis. It did not examine (or even assume) whether Roy Caballes had exhibited a subjective expectation of privacy, the first step in the Katz test. Thus, the Court could not take the second step, examining its objective reasonableness.

Instead, the Caballes Court skipped forward to a corollary of the Katz test that the Court had drawn in United States v. Jacobsen, 466 U.S. 109 (1984): “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123).

This is a logical extension of the Katz test, and one that helps reveal its weakness in maintaining the Fourth Amendment’s protections consistently over time. Now, instead of examining whether searches and seizures are reasonable, courts applying the Jacobsen/Caballes corollary can uphold any activity of government agents sufficiently tailored to discovering only crime.

What kinds of activities might those include? We talked about lasers.

A DHS program that might be directed not only at persons, but also at their houses and effects, is called the “Remote Vapor Inspection System” (or RVIS). RVIS “generates laser beams at various frequencies” to be aimed at a “target vapor.” Beams “reflected and scattered back to the sensor head” reveal “spectral ‘signatures’” that can be compared with the signatures of sought-after gasses and particulates. [citations omitted] Using RVIS, government agents might remotely examine the molecular content of the air in houses and cars, quietly and routinely explore the gasses exiting houses through chimneys and air ducts, and perhaps even silently inspect any person’s exhaled breath. If RVIS technology is programmed to indicate only on substances that indicate wrongdoing, the Jacobsen/Caballes corollary extinguishes the idea that its pervasive, frequent, and secret use would be a search.

If a dog sniff only reveals illegal activity, compromising no privacy interest, it’s not a search. So using lasers to check your breath for illegal substances is not a search either. We hope, obviously, that the Court will do away with this rule, which is so attenuated from both the language and the purpose of the Fourth Amendment.

Instead of determining whether a person has “reasonable expectations of privacy”—we called that doctrine a “jumble of puzzles”—courts should examine whether a “search” has occurred by seeing if police accessed something that was hidden from view.

When a person has used physics and law to conceal something from others, the Fourth Amendment and the Court should back those privacy-protective arrangements, breaching them only when there is probable cause and a warrant (or some exception to the warrant requirement).

To hold otherwise would be to allow the government to invade privacy not just using drug-sniffing dogs but using ever more sophisticated technology.

Bureaucrats and Big-Governmenters Work to Revive Their National ID

There are some rich ironies in a recent Stewart Baker blog post touting the slow crawl toward REAL ID compliance he believes states are making. One of the choicest is that his cheerleading for a national ID appears under a Hoover Institution banner that says “ADVANCING A FREE SOCIETY.”

No, having a national ID would not advance a free society. You could say “ADVANCING A SECURE SOCIETY” but even then you’d be overstating the case. A national ID would reduce the security of individuals massively in the aggregate in exchange for modest and arguable state security gains.

Speaking of which, Baker posts a picture of Mohammed Atta’s Florida driver’s license in his post. The implication is that having a national ID would have prevented the 9/11 attacks. In fact, having a national ID would have caused a mild inconvenience to the 9/11 attackers. Billions of dollars spent, massive aggregate inconvenience to law-abiding American citizens, and a much-more-powerful federal government so that terrorists could be mildly inconvenienced?

One of the greatest ironies is that Baker doesn’t—as he never has—takes on the merits of how and how well a national ID would advance security goals. But the merits don’t matter. Baker’s post provides a nice reminder that the bureaucrats will use their big-government allies to restart their moribund national ID plans if they can. Despite massive public opposition to REAL ID, they’ll try to build it anyway.

An anti-immigration group recently issued a report saying that states are getting on board with REAL ID. (They’re meeting massively reduced REAL ID “milestones” coincidentally, not to meet federal demands.) National ID advocate Jim Sensenbrenner (R-WI) put on a lop-sided show-hearing in the House Judiciary Committee last week, hoping to prop up REAL ID’s decaying body.

As if anyone would believe it, a DHS official said at the hearing that the January 2013 deadline for state compliance would not be extended. Book your tickets now, because there won’t be a damn thing different on the airport come January. The Department of Homeland hasn’t stood by any of its deadlines for REAL ID compliance. If it did, by refusing IDs from non-compliant states at the airport, the public outcry would be so large that REAL ID would be repealed within the week.

REAL ID will never be implemented. That doesn’t stop the federal government from spending money on it, so the bureaucrats keep trying to corral you into their national ID. They get occassional help, and sometimes it even travels under the false flag of “ADVANCING A FREE SOCIETY.”

Bathtubs, Terrorists, and Overreaction

I dislike our national obsession with anniversaries and tendency to convert solemn occasions into maudlin ones; to fetishize perceived collective victimization rather than simply recognizing real victims. That kept me from joining in the outpouring of September 11 reflection, now mercifully receding. But I have reflections on the reflections.

The anniversary commentary has, happily, included widespread consideration of the notion that we overreacted to the attacks and did al Qaeda a favor by overestimating their power and making it easier for them to terrorize. Even the Wall Street Journal allowed some of the bigwigs they invited to answer their question of whether we overreacted to the attacks to say, “yes, sort of.”

Unsurprisingly, however, the Journal’s contributors, like almost every other commentator out there, did not define overreaction. It’s easy and correct to say we’ve wasted dollars and lives in response to September 11 but harder to answer the question of how much counterterrorism is too much. So this post explains how to do that, and then considers common objections to the answer.

That answer has to start with cost-benefit analysis. As I put it in my essay in Terrorizing Ourselves, a government overreaction to danger is a policy that fails cost-benefit analysis and thus does more harm than good. But when we speak of harm and good, we have to leave room for goods, like our sense of justice, that are harder to quantify.

Cost-benefit analysis of counterterrorism policies requires first knowing what a policy costs, then estimating how many people terrorists would kill absent that policy, which can involve historical and cross-national comparisons, and finally converting those costs and benefits into a common metric, usually money. Having done that analysis, you have a cost-per-life-saved-per-policy, which can be thought of as the value a policy assigns to a statistical life—the price we have decided to pay to save a life from the harm the policy aims to prevent.

Then you need to know if that price is too high. One way to do so, preferred by economists, is to compare the policy’s life value to the value that the target population uses in their life choices (insurance purchases, salary for hazardous work, and so on). These days, in the United States, a standard range for the value of a statistical life is four to eleven million dollars. If a policy costs more per life saved than that, the market value of a statistical life, then the government could probably produce more longevity by changing or ending the policy. A related concept is risk-risk or health-health analysis, which says that at some cost, a policy will cost more lives than it saves by destroying wealth used for health care and other welfare-enhancing activities. One calculation of that cost, from 2000, is $15 million.

In a new book, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security,* John Mueller and Mark Stewart use this approach to analyze U.S. counterterrorism’s cost-effectiveness, generating a range of estimates for lives saved for various counterterrorism activities. I haven’t yet read the published book, but in articles that form its basis, they found that most counterterrorism policies, and overall homeland security spending, spend exponentially more per-life saved than what regulatory scholars consider cost-effective.

That is a strong indication that we are overreacting to terrorism. It is not the end of the necessary analysis however, since it leaves open the possibility that counterterrorism has benefits beyond safety that justify its costs. More on that below.

Objections to this mode of analysis have four varieties. First, people have a visceral objection to valuing human life in dollars. But as I just tried to explain, policies themselves make such valuations, trading lives lost in one way for lives lost in another. So this objection amounts to an unconvincing plea to keep such tradeoffs secret and make policy in the dark.

Second, people challenge the benefit side of the ledger by arguing that terrorists are actually far more dangerous than the data says. Analysts say that weapons of mass destruction mean that future terrorists will kill far more than past ones. One response is that you should be suspicious anytime someone tells you that history is no guide to the present. It tends to be the best guide we have, for terrorism and everything else. Our analysis of terrorists’ danger should acknowledge that the last ten years included no mass terrorism, contrary to so many predictions. Another response is that one can, as Mueller and Stewart have, include high-end guesses of possible lives saved to show the upwards bounds of what counterterrorism must accomplish to make it worthwhile. The results tend to be so far-fetched that they demonstrate how excessive these policies are.

A third objection is to claim that some counterterrorism costs are actually terrorism’s costs. Government should spend heavily to avoid terrorism, this logic says, because our reaction to the attacks we would otherwise fail to prevent will cost far more. In other words, if an expensive overreaction is inevitable, it helps justify the seemingly excessive up-front cost of defenses.

One problem with this objection is that it approaches tautology by treating a policy’s cost as its own justification. See, for example, Atlantic writer Jeffrey Goldberg’s recent response to John Mueller’s observation in the Los Angeles Times that more people die annually worldwide from bathtub drowning than terrorism and the article’s suggestion that we might therefore be overreacting to the latter. Goldberg argues, essentially, that we have to overreact to terrorism lest we overreact to terrorism. Then, after his colleague James Fallows points out the logical trouble, Goldberg, without admitting error, switches to argument two above, while failing to acknowledge, let alone respond to, Mueller’s several books and small library of articles shooting that argument down.

Another problem with the inevitable overreaction argument is that overreaction might happen only following rare, shocking occasions like September 11. Future attacks might be accepted without strong demand for more expensive defenses. Moreover, the defenses might not significantly contribute to preventing attacks and overreaction.

The best objection to Mueller and Stewart’s brand of analysis is to point out counterterrorism’s non-safety benefits. The claim here is that terrorism is not just a source of mortality or economic harm, like carcinogens or storms, but political coercion that offends our values and implicates government’s most traditional function. Defenses against human, political dangers provide deterrence and a sense of justice. These benefits may be impossible to quantify. These considerations may justify otherwise excessive counterterrorism costs.

I suspect that Mueller and Stewart would agree that this argument is right except for the last sentence. Its logic serves any policy said to combat terrorism, no matter how expansive and misguided. We may want to pay a premium for our senses of justice and security, but we need cost-benefit analysis to tell us how large that premium now is. Nor should we assume that policies justified by moral or psychological ends actually deliver the goods. Were it the case that our counterterrorism policies greatly reduced public fear and blunted terrorists’ political strategy, they might indeed be worthwhile. But something closer to the opposite appears to be true. Al Qaeda wants overreaction—bragging of bankrupting the United States—and our counterterrorism policies seem as likely to cause alarm as to prevent it.

*Muller and Stewart will discuss their book at a Cato book forum on October 24. Stay tuned for signup information.

(Cross-posted from TNI’s The Skeptics.)

Behavior Detection as Interrogation

With the Department of Homeland Security constantly spinning out new projects and programs (plus re-branded old ones) to investigate you, me, and the kitchen sink, it’s sometimes hard to keep up. But I was intrigued with a report that behvaior detection officers are getting another look from the Transportation Security Administration. Behavior detection is the unproven, and so far highly unsuccessful (Rittgers, Harper), program premised on the idea that telltale cues can reliably and cost-effectively indicate intent to do harm at airports.

But there’s a new behavior detection program already underway. Or is it interrogation?

Due to a bottleneck at the magnetometers in one concourse of the San Francisco airport (no strip-search machines!), I recently had the chance to briefly interview a Transportation Security Administration agent about a new security technique he was implementing. As each passenger reached him, he would begin to examine the traveler’s documentation and simultaneously ask the person’s last name. He confirmed to me that the purpose was to detect people who did not immediately, easily, and accurately respond. In thousands of interactions, he would quickly and naturally learn to detect obfuscation on the part of anyone carrying an ID that does not have the last name they usually use.

As a way of helping to confirm identity, it’s a straightforward and sensible technique. Almost everyone knows his or her last name, and quickly and easily repeats it. The average TSA agent with some level of experience will fluently detect people who do not quickly and easily repeat the name on the identity card they carry. The examination is done quickly. This epistemetric check (of a “something-you-know” identifier—see my book, Identity Crisis) occurs during the brief time that the documents are already getting visual examination.

Some people will not repeat their name consistent with custom, of course. The hard of hearing, speakers of foreign languages, people who are very nervous, people who have speech or other communication impediments, and another group of sufferers—recently married women—may exhibit “suspicious” failure to recite their recently changed surnames. Some of these anomalies TSA agents will quickly and easily dismiss as non-suspicious. Others they won’t, and in marginal cases they might use non-suspicious indicia like ethnicity or rudeness to adjudge someone “suspicious.”

The question whether these false positives are a problem depends on the sanction that attaches to suspicion. If a stutterer gets a gauntlet at the airport each time he or she fails to rattle off a name, the cost of the technique grows compared to the value of catching … not the small number of people who travel on false identification—the extremely small number of people who travel on false identification so as to menace air transportation.

We used this and closely related techniques, such as asking a person’s address or the DMV office where a license was issued, at the bar where I worked in college. It did pretty well to ferret out people carrying their older friends’ IDs. Part of the reason it worked well is because our expert doormen could quickly escalate to further inquiry, dismissing their own suspicions or denying entry to the bar very quickly. The cost of getting it wrong was to deny a person entry to the bar and sometimes possession of a license. These are relatively small costs to college students, unlike the many hours in time-costs to a traveler wrongly held up at the airport. According to my interview, suspicion generated this way at the airport requires a call to a supervisor, but I did not learn if secondary search is standard procedure, or if cases are handled some other way.

TSA agents are not doormen at bars, of course, and the subjects they are examining are not college kids out to get their drink on. These are government agents examining citizens, residents, and visitors to the United States as they travel for business and pleasure, often at high cost in dollars and time. The stakes are higher, and when the government uses a security technique like this, a layer of constitutional considerations joins the practical issues and security analysis.

I see three major legal issues with this new technique: Fourth Amendment search and seizure, the Fifth Amendment right against self-incrimination, and Due Process. When questioning joins an ID check at the airport, it’s a deepening of a search that is already constitutionally suspect. The Fifth Amendment issues are interesting because travelers are being asked to confess through their demeanor whether they are lying or telling the truth. It would seem to cross a Fifth Amendment line and the rule against forced self-incrimination. The Due Process issues are serious and fairly straightforward. When a TSA screener makes his or her judgment that a person is not responding consistent with custom and is therefore “suspicious,” these judgement calls allow the screeners to import their prejudices. Record-keeping about suspicion generated using this technique should determine whether administration of this epistemetric check violates constitutional due process in its application.

In its constant effort to ferret out terrorist attacks on air transportation, the TSA is mustering all its imagination. Its programs raise scores of risk management issues, they create constitutional problems, and they are a challenge to our tradition of constitutionally limited government. The threat that a person will use false identification to access a plane, defeating an otherwise working watch-list sytem, to execute some attack is utterly small. At what cost in dollars and American values do we attack that tiny threat?

The founding problem is the impetuous placement of federal government agents in the role of securing domestic passenger aviation. There are areas where government is integral to securing airports, airlines, and all the rest of the country—foreign intelligence and developing leads about criminal plots, for example—but the day-to-day responsibility for securing infrastructure like airports and airplanes should be the responsibility of its owners.

If the TSA were to go away, air security measures might be similar in many respects, but they would be conducted by organizations who must keep travelers happy and safe for their living. The TSA hasn’t anything like private airports’ and airlines’ incentives to balance security with convenience, privacy, cost-savings, and all other dimensions of a satisfactory travel experience. Asking people their names at airport security checkpoints is an interesting technique, and not an ineffective one, but it should probably be scrapped because it provides so little security at a relatively great cost.

Beware the Depends Bomber?

My Washington Examiner column this week is on TSA, the federal agency that’s its own reductio ad absurdum.

In the latest TSA atrocity, the agency forced a wheelchair-bound, 95-year-old leukemia patient to remove her adult diaper, for fear she might be wired to explode. “It’s something I couldn’t imagine happening on American soil,” her distraught daughter told the press: “Here is my mother, 95 years old, 105 pounds, barely able to stand, and then this.”

My God, what is she on about? Proper procedure was followed!

As I point out in the column:

in a classic case of “mission creep,” TSA is taking its show on the road and the rails.

Remember when, pushing his bullet-train boondoggle in the 2011 State of the Union, President Obama cracked that it would let you travel “without the pat-down”? Not funny—also, not true.

Earlier this year, Amtrak passengers in Savannah, Ga., stepped off into a TSA checkpoint. Though the travelers had already disembarked the train, agents made women lift their shirts to check for bra explosives. Two weeks ago, armed TSA and Homeland Security agents hit a bus depot in Des Moines, Iowa, to question passengers and demand their papers.

These raids are the work of TSA’s “Visible Intermodal Prevention and Response” (VIPR or “Viper”) teams—an acronym at once senseless and menacing, much like the agency itself.

All this is happening at a time when al Qaeda looks more harried, pathetic, and weaker than ever. But hey, you can never be too careful, right?

Feel Safer?

Does Rep. Aderholt Support or Oppose Having a National ID?

Rep. Robert Aderholt (R-AL) is the chairman of the House Appropriations Subcommittee on Homeland Security. That’s the subcommittee that makes spending decisions for the Department of Homeland Security and the programs within it, including the REAL ID Act.

Earlier this month, a constituent of his from Fyffe, Alabama posted a question on Mr. Aderholt’s Facebook page:

Rep. Aderholt, I’ve seen reports that the “REAL ID ACT” will be implemented in May of this year, giving the govt the ability to track every person who has a drivers license via encoded GPS. Is this actually the case and if so, what is the House going to do to stop this Orwellian infringement of our Liberty. Also, HOW could this have happened in the first place!

Mr. Aderholt has not replied.

But Right Side News recently reported on a hearing in which DHS Secretary Janet Napolitano presented her agency’s budget request. The DHS has not requested funds for implementing REAL ID. But according to the report, Chairman Aderholt “pointedly reminded” the committee of the need for funding of REAL ID.

It is good of Representative Aderholt to give his constituents a means to contact him and to invite public discussion of the issues. It’s an open question whether he will listen more closely to the voice of his constituents or to influences in Washington, D.C. who would like to see law-abiding American citizens herded into a national ID system.

Is the REAL ID Rebellion Coming to Florida?

Until now, Florida has not been one of the states to buck the federal government’s national ID mandate, established in the REAL ID Act of 2005. A pair of grand jury reports in 2002 had moved the state to tighten its driver licensing processes prior to any federal action, so it was already doing many of the things that the Department of Homeland Security is now seeking to require of states in the name of REAL ID.

Full compliance with REAL ID remains a distant hope, so DHS has set out a list of 18 “milestones,” progress toward which it is treating as REAL ID compliance. Full compliance with REAL ID includes putting driver information into a network for nationwide information sharing—including scanned copies of basic identity documents. It includes giving all licensees and ID holders a nationally uniform driver’s license or ID card so their identity can be checked at airports, federal facilities, and wherever the Secretary of Homeland Security determines to have federal checkpoints.

Again, the state of Florida meets DHS’ milestones. Starting from an already strict driver licensing regime, the state’s bureaucrats have been doing (and asking the legislature to do) things that match up with the requirements of the national ID law. But now, thanks to the work of Florida’s Tenth Amendment Center, Floridians Against REAL ID, and others, the legislature is beginning to pay attention.

Why is it so hard for law-abiding citizens and residents of Florida to get or renew their licenses? What kinds of barriers to progress are being thrown in front of lawful immigrants from Haiti, who haven’t the documentation required to get a license and thus a job?

Rep. Geraldine Thompson (D-Orlando) has lived in Florida since 1955 and was elected to the Florida legislature in 2006. She was born in New Orleans and is not able to get a copy of her birth certificate. The Florida Department of Motor Vehicles would not accept her Florida House ID card as proof of her identity!

Several members of the Florida legislature are concerned that the state is scanning and databasing the basic identity documents of Floridians, exposing those documents and the people of Florida to unknown cybersecurity risks. If these databases were hacked, Floridians’ data would be treasure trove for identity fraud. A breach of an entire state’s identity data could collapse the system we now rely on to know who people are. This is not an improvement in security for Floridians.

Florida’s Cuban ex-pat population has some idea of what could result if they were herded into a national identity system. They are too familiar with central government control of access to goods, services, employment, and other essentials of life. Advocates of national ID systems here in the United States have already argued for using REAL ID to control access to employment, to financial services and credit, to medicines, to housing, and more.

In my testimony to the Florida legislature, I noted that the federal government is impotent to enforce REAL ID. The political costs of a DHS attack on air travel (if it refused to recognize drivers’ licenses from non-compliant states at airport checkpoints) would be too high. Indeed, word is spreading that DHS will soon extend the REAL ID deadline once again.

What’s clear from my visit to Florida is that legislators there respond to what they hear from their constituents. It’s unclear what the Florida legislature will do to reassert control of its driver licensing policy from the concerted action of the federal government and its motor vehicle bureaucrats.

One of the questions they might ask is, “Who committed Florida to comply with REAL ID?” That’s item number seventeen in the DHS’ eighteen-point material compliance checklist.