Feb 17, 2008 Here a scanner, there a scanner, everywhere a scanner scanner
An entire generation of people now as old as their twenties and older grew up with so many intrusions into their privacy that too many of them probably accept such a state of affairs unquestioningly, and thus are more willing to impose the same oppression on others.
Unlike when I was in high school, today it is common in many high schools to have metal detectors and in even more schools mandatory urine-drug testing for intramural athletes (which makes me all the more unenthusiastic about spectator sports, although I still enjoy watching a good lacrosse game and some of the televised daring non-ball sports (e.g. wild obstacle courses, which I hope do not involve drug testing)).
No job I have applied for (including several retail jobs while a student) ever involved a drug test, unless the urine sample I supplied during my medical exam at the then-named Irving Trust Company — where I worked as a commercial bank auditor the year before law school — included a drug test rather than a test for my health (it was 1985, which makes it possible that I wasn’t being tested for drugs). Today, even to get a job at Pep Boys one must be drug tested, and I have seen that store proudly proclaim the same.
Right through the 1980’s, one could walk in the United States Capitol building without going through a metal detector. Today, one must pass through a metal detector just to go to the food court at the Old Post Office Pavillion in Washington, D.C., so I avoid the place. The Capitol building and grounds now are a fortress in many respects.
At the otherwise wonderful American Indian museum in Albuquerque, a sign says that visitors are subject to search on exit; I did not notice the sign until leaving. One of the managers there — a very likable person — said this measure was to catch people stealing the museum’s artworks, and said some of the searched people are found with such items. I have not seen such a sign anywhere else, not even at the Smithsonian Institution, which has all sorts of treasures all over the place; on the other hand, the Smithsonian — among many other museums — has armed guards, which dampers the art experience with the violence of handguns at the ready.
Before the mid-1990’s, airline passengers were not required to show photo identification at check-in, and certainly did not need to remove their shoes. Let us not forget those days of less hyper-security. If we do, we are doomed to have even more oppressive privacy intrusions than we already have.
As a criminal defense lawyer, I have to put up with intrusive security when visiting clients in jails and prisons; when visiting courthouses; and when visiting federal prosecutors’ offices and police facilities.
Sometimes, all this hyper-security is too much to put up with. For instance, my one run-in with jailers came in 1996. I was on my way to be interviewed at the last law firm with which I ended up working before opening our current firm in 1998. On the way, I stopped at the Maryland Correctional Institution in Jessup to meet a client. Seeing an imposing dog by the metal detector, I inquired whether it was a drug dog; it was. Not interested in trading my privacy rights to that level, I said I’d return when the dog was not there.
Tensions were high at this prison at the time, I imagine, coming soon after a then-recent Maryland high court decision reversing the drug felony conviction of a man who had drugs in his trunk, which the prison officials ordered searched when he opted to leave the MCIJ prison grounds rather than submit to a random car search before proceeding to the parking lot. The court rightfully ruled that he had the right to leave, and that there was no lawful basis to search his car.
I could have just left without saying anything; I certainly was offended by this invasion of privacy. At the time, I was still with the Maryland Public Defender’s Office. A managing prison officer made a big and loud deal of my refusal to be sniffed for drugs. He acted incredulous that I would not agree to be sniffed; cops often act incredulous when they stop a car and the driver refuses to talk (even though such refusal is a Constitutional right). He huffed and he puffed, and he threatened to call my boss, which he did.
The next day, my boss and her deputy wanted to speak with me. They surmised the prison might not let me back without taking a drug test first, which would have been clean as a whistle. When I said I wasn’t inclined to agree to a drug test, my boss said "This is your career," which it clearly was not, as I had already resolved to return to private practice that year, and did so just a few weeks later. It reminds me of a quote I heard from the great trial lawyer Tony Serra, to which I have long ascribed, that we must follow our consciences at all times.
DO THOSE MACHINES SEE MY ANATOMY?
Going through courthouse security can be a royal pain. Some security people are very professional and courteous. That has particularly been my experience with the marshals at the United States District Courthouse in Alexandria, Virginia. However, court rules ban cellphones and PDAs, which becomes a particular pain for those coming to court by subway, because the courthouse no longer provides lockboxes for cellphones. (A nearby carryout keeps it quiet that they will sometimes hold onto the items for a small fee.) Also, this is the courthouse where hyper-security reigned during the Zacarias Moussaoui trial.
At two county courthouses — one in Maryland and the other in Virginia — a contracting service handles security. On the infrequent days when I forget my bar card to bypass security (yes, that is unfair to those without courthouse passes), the experience can be most unpleasant, including when the security person taps on my pocket when the handheld scanner alerts, rather than just asking me what’s in my pocket. Sometimes the security people ask visitors to remove their belts.
At least until last year, the District of Columbia federal courthouse had a futuristic scanner where the person faces the scanner with hands up in front of a third-moon plexiglass structure, and a scanner moves quickly in the direction of the plexiglass. I have yet to find out if this is one of those machines that has the capability to see intimate anatomy. I put up with this nonsense for my clients. (And if it is not nonsense, why are such machines not at every courthouse, and not at the new entrance to this particular courthouse?)
A PUFF PORTAL IN MANASSAS
A few days ago, an FBI agent called to tell me that my client’s hard drive copy was ready to be mailed to me or our computer forensics expert. I was already not far away, so I decided to pick it up myself, at the FBI’s campus-like setting in Manassas, Virginia. I had to park by the guardbooth, where I was directed to a puff portal, which blasts air puffs on the person, apparently to dislodge any explosive particles from one’s body. I was not asked to remove my keys from my pockets, so I was not sure if the machine checked for more than that.
Not having been familiar before with such a machine, I would have preferred to have been told in advance that strong air puffs were going to hit my face and the rest of my body. I then would have asked what would be blown on my body, in order to decide whether to go through the machine. The security guard — who worked with a contracting company — told me to go into the booth and place my feet over the shoeprints on the ground. I did that, the air blasted on me, and the computerized voice said to exit, which I did the way I entered. The security guard came out of his booth and admonished me to listen to the voice in the machine. He started the procedure again, I thought the voice said to exit (without needing airblasts), so I exited forward through the blue bar. He admonished me that I was not following the computer voice’s instructions (great, an FBI employee is telling me to do the bidding of a computer); I believe the computer was not communicating very well in the first place.
After I finished with the puff portal, I asked the security person whether I had been blasted just with air or chemicals. He answered "chemicals." I figured he was joking. I walked to the building one hundred yards away, where the FBI agent waited and handed me the hard drive copy that I came to get. He told me he did not have to deal with the puff portal — and apparently did not know what it was — because he would go through the employee entrance. He escorted me to the gate, and I do not know if that was to assure I did not take out a soccer ball to kick around on the lawn. We passed the puff portal security man, and I asked if he was joking that I was blasted with chemicals, and the joker said he had been joking.
I later learned that these machines — also called explosive trace portals — were installed in some airports, and have turned out to be clunkers. How sweet is poetic justice. Jon Katz