Page 118 - Privacy in a Cyber Age Policy and Practice

106 PRIVACY IN A CYBER AGE

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the scanners mark the places where hidden objects are detected. In this
way, the TSA was able to carry out the same thorough search in a way that
was far less intrusive than full-body pat downs or scanning that revealed
every contour of the traveler’s body.
Fourth, measures that ameliorate undesirable side effects of necessary
privacy-diminishing measures are to be preferred over those that ignore
these effects. Thus, to the extent that those engaged in counterterrorism
searchers are instructed to ignore misdemeanors such as minor drug
offenses or vandalism, this criterion is met.

C. Narrowing the Gap
1. Generalized Search Is Legal and Legitimate

The privacy model most often employed by privacy advocates is that of prob-
able cause and individualized search. These advocates argue that, before law
enforcement officials search anyone, it should be required—and indeed is
required, according to the Constitution—that they present to a court of law
evidence demonstrating that strong reason exists (enough to convince a
judge) to believe that the particular person is likely to be a terrorist. Only then,
according to these advocates, can said person be subjected to surveillance. 24
The courts, however, have long established that when there is both a clear
public interest and the privacy intrusion is small, “general searches” (i.e., of
masses of people, without individualized causes) are legal and necessary, thus
employing, in effect, a similar line of analysis to the liberal communitarian
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one outlined earlier. This principle has been applied to airport screening,
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sobriety checkpoints, drug tests of those whose jobs involve public safety,
and the screening of mail and Internet communications. This endorsement
of general searches has been supplemented by other rulings that have
legitimated the government’s power to conduct generalized searches.
General searches were further legitimized by Section 215 of the Patriot
Act and the National Security letters authorized by the same. This legislation
allows the government to conduct surveillance without first identifying an
individual as a suspected terrorist and also grants it the authority to search
through third-party databases without notifying suspects—as long as the
information is “relevant” to a terrorism investigation. 28

2. Computers Are Blind, Deaf, and Dumb

The incontrovertible fact that privacy and security pose conflicting
demands and hence must be balanced does not mean that one cannot find