The U.S. Court of Appeals for the 2nd Circuit recently upheld New York City’s program of random searches at subways. The case is McWade v. Kelly, No. 05 6754 CV (2d Cir. 2006). The program was initiated after the London subway bombing. Back in December, 2005, a federal district court upheld the searches, which are conducted without a warrant, without probable cause, and even without reasonable suspicion. In a blog post critiquing the decision, I wrote:
It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.
The 2nd Circuit panel concluded that the program was “reasonable” under the 4th Amendment’s special needs doctrine. Under the special needs doctrine, if there are exceptional circumstances that make the warrant and probable cause requirements unnecessary, then the search should be analyzed in terms of whether it is “reasonable.” Reasonableness is determined by balancing privacy against the government ‘s need. The problem with the 2nd Circuit decision is that under its reasoning, nearly any search, no matter how intrusive into privacy, would be justified. This is because of the way it assesses the government’s side of the balance. When the government’s interest is preventing the detonation of a bomb on a crowded subway, with the potential of mass casualties, it is hard for anything to survive when balanced against it.
The key to the analysis should be the extent to which the search program will effectively improve subway safety. In other words, the goals of the program may be quite laudable, but nobody questions the importance of subway safety. Its weight is so hefty that little can outweigh it. The important issue is whether the search program is a sufficiently effective way of achieving those goals that it is worth the trade-off in civil liberties. On this question, unfortunately, the 2nd Circuit punts. It defers to the law enforcement officials:
That decision is best left to those with “a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers.” Accordingly, we ought not conduct a “searching examination of effectiveness.” Instead, we need only determine whether the Program is “a reasonably effective means of addressing” the government interest in deterring and detecting a terrorist attack on the subway system. . . .
Instead, plaintiffs claim that the Program can have no meaningful deterrent effect because the NYPD employs too few checkpoints. In support of that claim, plaintiffs rely upon various statistical manipulations of the sealed checkpoint data.
We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day to day police power. Counter terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not and may not second guess the minutiae of their considered decisions. (internal citations omitted)
Although courts should not take a “know it all” attitude, they must not defer on such a critical question. The problem with many security measures is that they are not a very wise expenditure of resources. It is costly to have a lot of police officers engage in these random searches when they could be doing other things or money could be spent on other measures. A very small number of random searches in a subway system of over 4 million riders a day seems more symbolic that effective. If courts don’t question the efficacy of security measures in the name of terrorism, then it allows law enforcement officials to win nearly all the time. The government just needs to come into court and say “terrorism” and little else will matter.
Today, courts employ a balancing approach toward constitutional rights. Some have argued that constitutional rights are absolutes and that balancing approaches are problematic because the government will almost always win. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987) for a critique of balancing. I’m a balancer. No right has absolute value. But meaningful protection of constitutional rights requires that courts engage in a rigorous balancing. Rigorous balancing depends upon requiring the government to justify its security measures as having a strong degree of effectiveness. Almost any security measure can be justified as having some marginal benefit. And you can do the math from there. Preventing terrorism has an immensely heavy weight. Any given security measure will provide a marginal benefit toward that goal. At this point, it becomes an exercise in futility to even bother to look at the civil liberties side of the balance. The government side has already won.
1. Solove, NYC Subway Searches Upheld: A Critique of the Court’s Decision (December 2005)
2. Solove, Rational Security vs. Symbolic Security (December 2005)
4. Hoffman, Deterrence and Subway Searches (response to Solove) (July 2005)
5. Solove, Terrorism, Deterrence, and Searching on the Subway (reply to Hoffman) (July 2005)
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.