Transportation Security Aggravation

Debating the balance between privacy and safety in a post-9/11 aviation industry.

Robert Poole & Jim Harper from the March 2005 issue

(Page 2 of 6)

Most arguments for federal government involvement in transportation security follow a logic that is not logic at all. Usually thoughtful policy experts utter things like: "I just think there is a federal role. I mean, look at what happened."

Robert Poole's justification for government provision of security to private industry is better: Airplanes are uniquely fragile, he says. But this logic proves too much. Yes, 9/11 demonstrated aviation's vulnerability. But a successful attack on a shopping mall, the food or water supply, chemical manufacturing, or any other target would make those institutions seem uniquely fragile too. All infrastructure and systems have important weaknesses. If the premise for federal authority were vulnerability, it would be boundless.

TSA security measures have been inconsistent and mindlessly reactive. This is because bureaucracies are poor at assessing and balancing risk. They are much better at surfing public opinion and following political cues. Witness the TSA's obsession with small, sharp things early in its tenure and the shoe fetish it adopted after Richard Reid demonstrated the potential hazards of footwear. This is not a foresighted, research-based, risk-assessing organization.

Highly effective, nonregulatory systems exist to analyze and respond to risk. They operate well, though not perfectly, when they are allowed to. They start with the tort system, which places responsibility for avoiding foreseeable harms with the parties in the best position to avoid them. Through insurance contracts, businesses in every sector of the economy spread risk and often purchase expert advice on loss avoidance.

An obvious question: If these systems are so good, how did they fail us on 9/11? Unfortunately, no one had seriously contemplated that airplanes might be commandeered and used as missiles. Our private-sector risk avoidance systems are good but not perfect. No real-world system--public or private--foresaw the 9/11 terrorists' actions, so audacious in planning and so lucky in execution.

Things always seem more foreseeable in hindsight. And the airlines recognized after 9/11 that some court somewhere might heap bankrupting liability on them by finding that the attacks and their results were predictable. Moving swiftly to capitalize on emotion and patriotism, the airlines sought to shield themselves from liability, acquire an infusion of taxpayer dollars, and push their security obligations onto the government.

Hence the impossibly murky airline security system we have today. Lines of authority are unclear. Lines of passengers are long. Rules are unclear. Responsibility is unclear.

Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.

The costs of the status quo are tremendous. Taxpayers are funding another new and sure-to-grow bureaucracy. Air travel has rebounded, but certainly not to the levels it should have reached by now. Thousands of would-be travelers are staying away. Those who do travel are wasting millions of hours per year standing in lines. And they are shedding dignity by the bushel as they undergo compulsory frisking by TSA law enforcers.

The air travel industry is already beginning to figure out the bad bargain they struck when they pushed their security responsibilities onto the government. But they will not take into account another tremendous cost of abandoning their responsibility: erosion of civil liberties.

The same policy experts who see a federal role in airline security "just because" seem not to see that the TSA's airport security procedures are an unconstitutional search and seizure within the meaning of the Fourth Amendment. Intrusions on the individual right to be free of search and seizure are allowed, but they must be reasonable. The TSA stops everyone without regard to individualized suspicion. Either that policy is unreasonable, or every search is reasonable in the era of terrorism. Let's hope it's not the latter.

Allegedly to reduce the incidence and intrusiveness of such searches, the government is pressing forward with plans to do background checks on travelers, again without regard to suspicion. The reviled Computer Aided Passenger Pre-Screening System, better known as CAPPS II, has been renamed Secure Flight, but it still relies on searching databases of information about travelers. National ID legislation to streamline and strengthen this process passed at the end of the 108th Congress. These erosions of liberty result directly from the government's acquisition of the airlines' role in securing their operations.

When security is provided by the airlines, searches and background checks can be a condition of travel because constitutional restrictions do not apply to private actors. Airlines, eager to retain customers, will provide security in the least offensive and intrusive way consistent with the highest levels of safety. This may well include special lines with faster service for travelers who have undergone background checks. But only if security is private can we be assured that this choice will remain a genuine choice and not become mandatory.

There is no realistic business model in which airlines would skimp on security. Because of 9/11, the threats are now well recognized. The tort liability would be devastating if an airline failed to harden its defenses against threats, known or imagined, in light of the new knowledge. If an airline were inclined to go lax on security, hoping for the best rather than working to guarantee it, its insurers would quickly step in to correct it.

Businesses throughout our economy have taken a fresh look at their security procedures in light of the terrorist threat. Without fanfare or tremendous expense, likely targets of terrorist attack are being hardened. This is a winning strategy. Indeed, maintaining security as a private responsibility is the only acceptable strategy--unless we plan to destroy American life in order to save it.