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With all the anger and confusion regarding the TSA's use of enhanced search techniques—backscatter x-rays and millimeter-wave imaging devices that have been derided as "porn machines," plus highly intrusive pat-downs—a lot of people have been asking me if this sort of thing is legal or constitutional. That's understandable, since I'm a law professor who writes a lot about technology. But the real question isn't the law: It's what kind of security we want. . . .
Remember, the only time a terrorist attack on a U.S. airliner has been defeated (as opposed to fizzling when a shoe bomb failed to detonate) was on Flight 93. That's when the passengers themselves took action. Security has always been about everyone, not just the professionals, because where terrorism is concerned, everyone is on the front line. Anyone might be a first responder, by virtue of being where an attack happens. So it's time for the public to weigh in, and for authorities to listen. To fight terrorism, we need a populace that is informed, motivated, vigilant and prepared, not one that is seething and feeling powerless and resentful. Yet our current security approach seems almost designed to produce the latter, rather than the former. Can that be right?
The courts, he suggests, aren't going to get us out of this jam. We have to pressure the government ourselves, and force them to make better tradeoffs and wiser choices. Which can be done.
