New York City residents are, by now, used to the subway version of the stop-and-frisk, to the sight of policemen manning the turnstiles to the city subway, subjecting passengers to ‘random’ searches of their bags and belongings. The rules are quite simple: if you don’t subject yourselves to the search you don’t get to enter and ride. Many of the city’s residents, however, do not realize the option to refuse the search exists. (I have never looked closely enough to verify whether this option is made clear to the potential passenger; rather, the subway rider becomes aware of the impending search when a policeman menacingly waves you toward his partners with the irritatingly faux-polite “Sir, would you step this way?”)
Over the past few years, in the course of teaching the privacy portions of my Computer Ethics class at Brooklyn College, I became aware of a rather depressing fact when discussing the Fourth Amendment: not a single student in my classes was aware of the fact that they could decline a search and simply leave the subway station instead. When I informed them that on two separate occasions–once at 42nd Street station and once at Atlantic Avenue–I had said, “No thanks” and walked out–on the latter occasion, I walked up the stairs, crossed Atlantic and Flatbush Avenues and then entered the same station at the unmanned Hanson Place entrance–I was greeted with cries of disbelief: “Really?” “No way! You can do that?”
This little discussion is quite useful in enabling a segue into a discussion of the ludicrous rallying cry–If You’ve Got Nothing to Hide, You Shouldn’t Mind a Little Stop-n-Frisk Action–of the pro-search brigade. I ask my students whether concealment of a crime is the only reason that someone might give for refusing a search, and ask them to suggest situations where someone might quite reasonably decline a search in order to keep something entirely legal private. (Unsurprisingly, some of the examples involved pornography: one student suggested a closeted gay man going home with recently purchased gay porn; another student said he wouldn’t want his hetero-porn purchases to be visible to other passengers; others disliked the idea of police looking through their clothes; and some students, because of their own personal history of encounters with the police, simply disliked the idea of police, once again, subjecting them to an atmosphere of intimidation.) Many of my students quite like the sound of a great line I got from Marc Rotenberg: If I’ve Got Nothing to Hide, Then Why Do You Need to Search Me?
During this discussion, I also ask my students what they think is being achieved by these random searches in the subway system. As my example of entry and re-entry to the Atlantic Avenue station suggested, the system is easily co-opted (when I declined my search at the 42nd Street station, I walked eight blocks and entered the subway at 34th Street); moreover, someone actually planning to do harm to the city subways would not plan an operation that could preempted by a mere search at the turnstiles. The answer to this question emerges quite quickly: this system of searches does nothing to increase our security; it does however, ensure that the citizens of this city (and certainly those who visit it), increasingly get used to a world in which armed representatives of the state are present in public spaces, ready to inspect, regulate, and commandeer. Gradual conditioning like this can do wonders to ensure the steady, relentless erosion–one enabled by the acquiescence of the citizenry–of legally sanctioned and protected civil liberties. These searches are not tactics of protection; they are strategies of subversion.