The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.
I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I’ll attempt to clear up any confusion as to my positions and try to defend my turf.
1. I’m not a privacy absolutist. If I were, I wouldn’t even be speaking about whether the subway searches were effective or not, as it would be irrelevant.
2. I am not arguing that we’re on a slippery slope toward totalitarianism. I am arguing that the “show of force” that Jason extols is something that totalitarian societies do, and it has effects on shaping people’s attitudes and their sense of freedom. It has “expressive” content. My argument is not that we’re going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won’t necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government’s installing telescreens into people’s homes anytime soon, the subway search policy isn’t a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.
3. I did not invoke Korematsu to suggest that we’re on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn’t defer but should keep a very critical eye on the policies adopted by the government in times of crisis.
4. Dave writes: “What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant?” Well . . . yes. Justice Brandeis took it upon himself to research the issues when he wasn’t convinced with what the parties brought him. That’s what a good judge should do. In cases having an impact beyond just the particular parties, courts should have a responsibility to get it right. In other words, the court’s responsibility is not just to see which litigant plays the better game, which litigant performs the best, but to make the best decision under the law. If a court is skeptical of something and is unconvinced by the evidence, then the court can readily demand more of the parties or perhaps even call an independent expert of the court’s own choosing. But it seems silly for a court to say: “Well, even though the case affects millions of people, I’ll rule in favor of the party that performed the best — even though I don’t know that the outcome is right.”
5. I am not conflating the Fourth Amendment and the wisdom of the search policy. The Fourth Amendment requires a balancing — a determination of the reasonableness of the policy. This involves examining whether the policy is effective, whether alternatives are available, and so on. How can one balance the search policy against privacy if one doesn’t examine these issues?
6. I am not demanding that the government have to justify the search policy as the “least intrusive method necessary” or “the most effective strategy policy possible.” This grossly exaggerates my position. I do believe, however, that the Fourth Amendment requires that the searches have at least a reasonable degree of effectiveness. And if other equally or more effective strategies are available that don’t infringe upon liberties, then this should effect the calculus about whether the search policy is reasonable. I’m not demanding that NYC adopt the best strategy. When liberties are sacrificed, however, the strategy should at least have a level of effectiveness that outweighs the costs.
7. It is true that part of my argument deals with the general lack of wisdom of the search policy. I definitely make arguments about the policy’s wisdom (and the wisdom of certain general strategies in combating terrorism) that are independent of the Fourth Amendment analysis. The Fourth Amendment doesn’t require the best policy — and the subway searches are clearly not the best. But the Fourth Amendment requires a policy where the effectiveness outweighs the costs — and on this ground, I believe, the NYC subway search policy also fails.
UPDATE: Hanno Kaiser has some interesting arguments about the issue at Law & Society Weblog [link no longer available]:
In the conclusions of law, the court writes:
Against the compelling government interest in preventing a terrorist attack, the Court has weighted the (relatively limited) level of intrusion imposed upon subway riders.
Borrowing language from economics, the court compares totals, i.e., a terrorist attack, with marginals, i.e., the intrusions imposed upon subway riders. The comparison is not between “preventing terrorist attacks” and “people’s privacy” (two totals), nor is it between “the increase in safety from the subway bag search program as challenged” and “the relatively minor intrusions imposed upon subway riders by the program” (two marginals). As between the two, only the latter is a reasonable approach to weighing competing interests, but be that as it may, comparing marginals to totals is simply not meaningful, because the totals will always win. The court’s faux balancing is merely a rhetorical gloss on a foregone conclusion.
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.