Opt-Out Cop-Out

Jacob Sullum | November 29, 2010

National Opt-Out Day seems to have fizzled, judging by the percentage of holiday travelers who insisted on vigorous frisking instead of submitting to a full-body scan. According to the Transportation Security Administration, only 39 of the 47,000 passengers who went through security lines on Wednesday at Atlanta's Hartsfield International Airport, the country's busiest, opted to be felt up. The TSA says waiting times in Atlanta and elsewhere were no longer than normal for pre-Thanksgiving travel. New York Times media columnist David Carr notes that the chaos reporters eagerly anticipated, with protesters snarling lines by resisting the scans, failed to materialize. Implicitly conceding that there was not a whole lot of opting out, the organizers/instigators of the protest argue that they succeeded in drawing public attention to the issue, which was their goal all along.

It does not surprise me that few travelers opted for the less pleasant, more humiliating search option in order to make a statement. Those numbers do not necessarily mean that most Americans have no problem with the new procedures. As Bob Poole argues, public outrage may grow as the body scanner rollout continues and more people encounter the machines. Still, Americans have a history, at airports and elsewhere, of quickly getting used to invasions of privacy and infringements of liberty aimed at enhancing public safety. Requirements that originally seemed objectionable—from surrendering your pocket tools and beverages to taking off your shoes, from mandatory seat belt laws to DUI roadblocks, from divulging your Social Security number to showing your papers, from letting police dogs sniff your luggage or your car to signing a registry when you buy allergy medicine—soon become the new normal. And when it comes to deciding when a search or seizure is "unreasonable," practices that people readily learn to tolerate are more likely to be upheld by the courts. Writing in The Washington Post, George Washington University law professor Jeffrey Rosen argues that Fourth Amendment challenges to the new TSA procedures nevertheless have a good chance of succeeding.