City Belt: RAILROADING YOUR RIGHTS

New Homeland Security searches at PATH train station raise questions about life in modern America
By Elizabeth Weill-Greenberg

Like a twisted elementary school class of show-and-tell, yesterday the Department of Homeland Security (DHS) demonstrated its latest effort to search commuters and, they say, thwart an attack on New Jersey and New York City’s transit lines.

From July 13 to 27 the Department of Homeland Security will be forcing passengers at the Exchange Place PATH station in Jersey City to be searched using millimeter wave technology. During rush hour, passengers will be selected at random for screening; at other times all PATH riders will be screened.

Approximately 15,000 people use the Exchange Place PATH station daily.

Passengers will either walk through an open area lined with sensors or stand in what looks like a glass elevator. An image of the person is generated on a computer screen and is supposed to detect large objects hidden under the person’s clothing. The screening should take no more than a couple minutes, DHS officials said.

This is the second phase of a congressionally mandated program called the Rail Security Pilot Project; its results will be reported to Congress in the fall. The federal price tag is $10 million.

“The technology we’re testing today is designed to look for larger objects like a suicide belt vest and not smaller objects,” DHS spokesman Christopher Kelly told City Belt. “It’s calibrated to look for bigger things.”

Kelly said that the images generated also “protect one’s individual privacy.”

“There’s no way you can see any kind of body part,” said Kelly. “You can’t see any underwear. It’s designed to look at big bulky objects that may not typically be there. This is really just designed to check on explosives.”

Reporters at the DHS press briefing at Exchange Place were told not to take photos of the computer images for “security reasons.” The image generated is highly pixilated -- the person’s body, or even gender, cannot be made out. If an anomaly is detected it is shown as a colored splotch.

From there, the screener, a TSA-certified contractor with at least six months of airport experience, performs a secondary screening, where the suspect will be wanded and subjected to a pat-down search, according to Kelly.

Much like the widespread NSA wiretapping program and the random searches in New York City’s subways, the new program at Exchange Place shows that the government is casting its surveillance net wider and wider.

“It always troubles us to see a trend in which citizens are encouraged to waive their constitutional rights in the course of their daily affairs,” said Scott Morgan, associate director of Flex Your Rights, a Washington, D.C. based organization opposed to unconstitutional searches.

Security vs. Civil Liberties?

The surveillance debate is often framed as civil liberties versus security, as if the two are mutually exclusive. But there are serious questions as to the effectiveness of random searches and omniscient government spying.

Since New York instituted its random search policy on the subways a year ago, there have been five arrests all unrelated to terrorism -- for drug possession, disorderly conduct and other minor charges -- according to the Associated Press. (July 9, 2006)

City Belt requested information from the Department of Homeland Security and the Port Authority of New York and New Jersey on how many terror suspects were apprehended, and how many people were arrested on charges unrelated to terror, since the random bag search policy was instituted last July for travelers using the Port Authority’s PATH system, the Port Authority Bus Terminal, AirTrain JFK and AirTrain Newark.

We have not yet received an answer.

“Suspicionless searches -- of anyone walking by, searches with no particularized suspicion, no probable cause to suspect the individual being searched is likely to be involved in a specific crime as the 4th amendment requires -- these searches are always going to have a very, very low hit rate,” said Morgan. “It's very hard to find what you’re looking for when you don’t use any criteria to decide who to scrutinize.”

War on Terror, Meet War on Drugs

While the pilot program at Exchange Place is supposedly only looking for explosives, if “illegal drugs or drug paraphernalia are found during the screening process, a Port Authority law enforcement officer will respond,” according to informational literature published by DHS.

As Lee Tien, senior staff attorney with the Electronic Frontier Foundation, pointed out, these searches tell PATH users: “anything you carry may be used against you.”

That was certainly Larry Bailey’s fear in February when DHS tested the first phase of the Rail Security Pilot Program at Exchange Place. Commuters were asked to go through screening devices similar to those found at airports.

Bailey was carrying a small bag of marijuana. Bailey, a comedian and blogger now living in Long Island, refused to be searched and left the station.

“I really don’t think there’s anything you can do aside from completely stripping away peoples’ civil liberties and rights,” he told City Belt. “What we’re trying to do is stop up all the leaks. But one pops up somewhere else.” (For instance, there is another PATH station five blocks away.)

He added: “I’d rather take my chances than to live the way they live in Israel … You have to worry about the joint you forgot about or worry about the weed that’s been in your pocket for two months. For me it’s not worth it.”

But despite the serious questions as to the effectiveness of random searches, the surveillance machine still pushes ahead. After all, DHS puts on a great show.

Post script: The ACLU of New Jersey declined to comment for this story. They were also not present at yesterday’s news conference to present the other side of this issue, leaving TV and print reporters on a daily (or shorter) deadline with no easily recognizable opposition to quote from.

In an e-mail to City Belt the executive director wrote, “I'm happy to do an interview for City Belt but not on that particular topic. I don't have much to say about it.”

When asked for information on what complaints, if any, the ACLU-NJ had collected on the PATH random bag searches via their online complaint form City Belt was told, “I'm sorry but we are not able to provide that information to you.”

With friends like those …

On the Web: Flex Your Rights
Electronic Frontier Foundation

Comments

In its lament about the rigor of reporters' deadlines, CityBelt unfairly portrays the ACLU-NJ as being unresponsive to the news media.

On the contrary, the ACLU-NJ spends a great deal of time and effort on any given day answering a flurry of media requests -- just do a quick Google search and you'll see that this week alone we were quoted about a Spanish billboard controversy in Bogota, a case of suppression of police officer speech in Newark, an op-ed on domestic spying, racial discrimination in Lakewood, abortion rights, etc. This list does not include all the legal analysis we provide to reporters during our daily deluge of media calls.

Sometimes, based on our workload or because we're developing legal strategies around an issue, we simply can't respond to a media inquiry. Our hope is that CityBelt would be sophisticated and experienced enough to understand these things. Instead, the publication criticized us for not attending a press conference that was organized by the Department of Homeland Security (surprise surprise, they don't usually invite us to their events) and implied that we're neglecting our mission, which a cursory Google search will again dispute.

If CityBelt were really desperate for an opposing standpoint, a quick search on the ACLU-NJ Web site would have provided the reporter with some answers: http://www.aclu-nj.org/issues/opengovernment/randombagchecksontransitne.htm

This might have been a better use of CityBelt space rather than a churlish and unwarranted criticism of our work.

Posted by: ACLU-NJ | 07/13/2006 at 05:27 PM

Well, we didn't quite do what you are saying we did. We were not saying that the ACLU-NJ is generally "unresponsive to the news media" -- we were saying that the ACLU-NJ was unresponsive on THIS specific issue. It was pretty simple, and it was true. When we asked for a comment on the DHS searches, we were told in an e-mail "I don't have much to say about it" -- and that's what we were referring to.

Of course we understand that the ACLU-NJ makes itself available to reporters, and can't comment on every thing that comes up. Again, that wasn't quite the point being made. It was more a question of why there was no media effort being made on the DHS searches -- the philosophical rationale, not the "too busy" rationale.

We were also not implying that the ACLU-NJ should be a member of the DHS news conference, but that the ACLU-NJ should have perhaps had a counter-news conference or at least a statement. We regret that this wording could have been more clear.

City Belt was aware of the linked statement that the ACLU-NJ had on Random Bag Checks. But we were looking for a person to address this current round of DHS screening, not a related -- but clearly different -- case.

Lastly, we welcome the discussion and the criticism. But despite all the criticism, we would still like an answer as to why the ACLU-NJ would not make a statement on the DHS screenings.

If "too busy" is truly the answer, that's fine. But if it is, we think that, given the examples cited that the ACLU-NJ has taken up in recent weeks (Bogota in particular), this answer shines light on what we would consider misplaced priorities.

Posted by: Editor | 07/13/2006 at 07:25 PM

Walking through Exchange Place the other day, although I was not detained or searched, I hardly felt that the big plastic boxes and remote scanning were as innocuous as the DHS press release makes them sound. Given that before the City Belt piece came out, virtually all of the (precious little) media coverage I saw regarding the PATH searches apparently quoted wholesale from that release, it became important to have a counterpoint somewhere in the press.

I find it very hard to believe that releasing a boilerplate "ACLU-NJ condemns this unconstitutional practice" statement would really have taken very long. As City Belt points out (and as ACLU-NJ no doubt knows quite well), it is important to a self-respecting reporter to have a statement from an authoritative and well-known group or individual on both sides of any given issue. Bottom line: ACLU-NJ dropped the ball.

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