At Balkinization, Mark Graber posts an email from Princeton Professor Walter Murphy, who writes about his ordeal over being on an airline screening list:
“I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: “Have you been in any peace marches? We ban a lot of people from flying because of that.” I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. “That’ll do it,” the man said. “
Orin Kerr expresses skepticism about the story:
The question is, why was the name “Walter Murphy” on the list? The Bush Administration has a lot of harsh critics; if being a harsh critic were enough to end up on the No-Fly list, wouldn’t we have heard about it sooner? Professor Murphy’s primary evidence that he was singled out for his speech is that when he mentioned it as a possible reason to an American Airlines clerk, the clerk responded “that’ll do it.” I wonder, though, would the airline clerk know? Perhaps, as the clerk apparently professed a lot of knowledge as to who gets on the No-Fly list. On the other hand, how much do you trust an airline clerk about something like this?
Responding to commenters to his post, Orin requests evidence of other Bush Administration critics being placed on the list and states: “I know it’s old-fashioned to look at the evidence and only then reach a conclusion. But I guess I’m old-fashioned.”
I find Orin’s comments to be correct, yet largely missing the boat. Orin is right that Murphy’s report is anecdotal and speculative. It’s a reason to be skeptical. To my understanding, airline clerks have no idea what actually gets somebody placed on the list — the names on the list are added by the FBI.
However, I still find Orin’s response to miss the larger issue. The airline screening lists are clandestine and inscrutable. There is no way we could obtain systematic evidence of any bias or improper conduct in placing people on the list. So Orin’s demand for such evidence seems to be a bit unfair when the government has denied us the possibility of learning more about what gets a person placed on an airline screening list. Because so much is secret, there’s simply no way to criticize the lists according to Orin’s standards.
This raises a larger question. When the government is engaging in secret activities, how does the public evaluate them without transparency? How can people work up the political will to get more information about these programs? It is often hard to get any political traction without dramatic claims of abuse such as Professor Murphy’s. This does not mean that one should simply make up claims. But it does mean that speculative and anecdotal evidence should not immediately be discounted and ignored. Maybe, instead of being skeptical of Murphy’s claims about why he was on the list, we should direct that skepticism to the lists themselves.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.