A Useless, Intrusive P.R. Display

The illusion of security vs. the reality of the Fourth Amendment

The U.S. response to the July 7 terrorist bombings of the London tube system has been predictable: more hasty security measures. On July 21, police began conducting random searches of bags and packages carried by people on the New York city subway; those who refuse to be searched are not allowed to ride.

According to Mayor Michael Bloomberg, "These kinds of security measures are necessary." But any security measure must pass two litmus tests. First, it must be proven to be effective. Second, it must not violate constitutional rights. Mayor Bloomberg's "necessary" security falls down on both counts.

The odds of catching a would-be subway bomber are not very good. New York's subways carry about 4.5 million passengers on the average weekday, according to the Metropolitan Transportation Authority. If on any given day there were a single terrorist riding the subway, and half the passengers were carrying some sort of bag, the probability of finding him or her during any particular search using a truly random search pattern would be about one in 2.25 million or about four ten-millionths of one percent. Such odds are only slightly better than winning New York's Mega Millions lottery (about one in 175 million). Even multiplied by thousands of intrusive searches that's a poor bet—and that assumes terrorists are too dim to adapt by, say, strapping bombs to their bodies.

Random searches on the subway are as useless as random searches of airline passengers at the gate—a practice that fortunately has been eliminated by the Transportation Security Agency after TSA administrator James M. Loy decided it was a "stupid rule." The spectacle of security personnel patting down grandmothers and toddlers deserved the ample ridicule it generated. Furthermore, the procedure netted exactly zero terrorists. It is also rather telling that British authorities are not instituting random searches on the London tube system—a testament to the fact that doing so would be ineffective and cripple a transportation system that moves seven million people daily.

Aside from the futility of random searches, Bloomberg's panacea ought to be rejected because the Fourth Amendment of the U.S. Constitution guarantees the right of the people to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures." Without probable cause—such as someone fitting the physical description of a suspected terrorist—a random search of subway passengers is the antithesis of the Fourth Amendment.

That amendment is already in the intensive care unit thanks to the numerous exceptions made in the name of the war on drugs, as well as some of the provisions of the USA PATRIOT Act. If Mayor Bloomberg's measures are adopted nationwide, the prohibition against unreasonable searches will be in danger of expiring entirely.

According to New York Police Commissioner Raymond Kelly, passengers are free to "turn around and leave" to avoid being searched and having their rights violated. But this is hardly providing the protection of the Fourth Amendment. To begin, it is an impractical solution. Presumably, people are using the subway to go somewhere—most likely to work. It is highly unlikely that many employers will take kindly to an excuse of not wanting to have Fourth Amendment rights violated as a reason for being late or not showing up to work. Also, a decision to turn around and leave is likely to be viewed as suspicious behavior by law enforcement and might be used as "probable cause" for detention and an even more extensive search.

Officials in Washington, DC and San Francisco are waiting to see what happens in New York before deciding to implement random searches on Metro and BART, respectively. But deliberation won't change the fact that random searches are both ineffective and a gross violation of constitutional rights. The decision should be a no-brainer.

The outrage in America after the London tube bombings is certainly understandable—as is the desire for Americans to feel safe. At most, that's all random searches on the subway will do: make people feel safer. But such measures won't actually make them safer. It is all too easy to adopt the attitude of one New York subway passenger: "It's just part and parcel of the world we live in."

But nothing could be further from the truth. The world we live in is represented by the Constitution and the principles upon which American society rests. As such, we should heed Benjamin Franklin's admonition that those who would "give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Random searches on the subway ultimately mean we have neither.