Random Searches on the New York Subway: A User’s Story

Today’s post will simply make note of an interesting (and alarming) email I’ve received from a reader. Please do share this widely.

Some time ago I was researching the random bag check policy for the NYC subway system and stumbled across your blog posting [on random searches on the New York subway].

Until today I had never been singled out for a random bag check nor had I ever been arrested.  When I entered the subway on 58th street/Columbus Circle today at around 1pm a police officer approached me and asked to search my backpack.  I thought about it for a moment and then declined.  He told me that since I declined I would not be allowed to enter the subway.  I told him that that was fine with me and that I would simply exit and take a taxi.  I exited and began to make my way down eight avenue on foot to flag a taxi.  Along the way, instead of researching the matter on my phone more extensively as I should have done, I pondered the logic and fairness of the situation.

Even though I had nothing to hide, for some reason I did not feel like having my privacy invaded.  I also questioned the efficacy of the search strategy.  I wondered what exactly the officer meant when he told me I could not enter the subway.  Did he mean I could not enter at the exact spot where he was conducting the search?  Did he mean I could not enter that particular line at any other entrance?  Did he mean that since I had declined the search I could never ride the subway ever again on any other day and on any other line?  The vagueness of his statement puzzled me.  Surely as a metro card carrying resident of NYC I would not be required to suspend all access to this vital means of public transportation simply because I had declined this one bag check.  Following this train of thought I figured that if I entered at another station where no bag searches were being conducted I might be able to lawfully enter since I would be doing so without declining a bag check.

Remembering your story and some other information I had recently read about the legality of declining bag searches in public spaces I felt compelled to put my theory to the test.  I proceeded to head back a block north to 54th street and entered the subway from a different station.  When I made it to the turnstiles there was no bag search being conducted.  I swiped my card and entered the station.  Roughly thirty seconds after I entered the station I was approached by a different officer.  It immediately became clear that the original officer had put out an A.P.B. on me.   I was arrested and taken to the 58th street/Columbus circle subway police station.  The arresting officer instructed me to stand and face the entry counter where a duty officer and his sergeant were sitting.  As I waited there patiently and silently the sergeant and duty officer began discussing a strange smell that they detected in the air.  They continued by directing sarcasm my way and eventually asked me if I had been smoking Marijuana.  I said no and told them that the reason I had declined the search was not because I had anything to hide but rather that I did not feel like having my privacy invaded.  They laughed and suggested that I was lying.  I was then put in a cell with Steve, a man of multiple prior arrests who had decided earlier this morning to enter the station without paying.  I spent the next four hours learning all about Steve’s life story while waiting to be processed.  Finally, after having my mug shot and finger prints taken I was released.  I had a brief courteous discussion with the booking officer about the charges and my court date.  He informed me that because the NYC subway station is owned by a private company and because I had entered the station after declining the search I was being charged with trespassing (in fact, the subway is a publicly owned system that is leased to the New York City Transit Authority).  Furthermore, because I had entered the station after having been told not to I was also being charged with disobeying a lawful order.  He further stated that both charges are violations, lesser than misdemeanors.

That said, I am baffled by the vagueness of this law.  Why did the arresting officer arrest me rather than simply insisting on searching my bag?  Even though I was located it stands to reason that the ease with which I could have entered elsewhere renders the system contradictory and innefectual.  Your personal experience is a testament to this very idea.  The fact that I was arrested does not support the theory that the system works.  It simply seems to illustrate that much time was wasted and that I was arrested without probable cause.  I was not arrested because I was suspected of being a terrorist.  Instead I was arrested because I declined to have my privacy invaded.

I’m not totally sure what compelled me to enter the subway so quickly and so near to where I had declined the search.  For sure curiosity played a major role.  Before I decided on that course of action I did consider the wisdom of waiting a little longer, walking a little further, or simply taking a taxi as I had originally intended.  On the one hand, I am glad that the police force exists and that they are actively trying to avert another disaster.  On the other hand, if I was a terrorist or a drug trafficker or anything else unsavory I certainly would not have been so stupid as to enter the train so close and so quickly after my initial brush with the law.  I am simply a law abiding resident of this great city who was trying to make my way home.

Just some food for thought as you ponder entering the subway system so soon after and so near to your next declined bag search.

From: Matthew Akers

Glenn Greenwald is Not the Story; The Surveillance Is

The New York Times has an article on Glenn Greenwald, who has broken two stories on the NSA surveillance programs that now occupy most thinking people’s attention, which is titled thus: ‘Activist Blogger Is At The Center Of A Debate‘ on its front page. (The article’s title reads ‘ Blogger, With Focus on Surveillance, Is at Center of a Debate’). That headline, and the content of the story, tells us a great deal about what is wrong with modern journalism  and why civil liberties outrages aren’t so outrageous any more.

Greenwald is most emphatically not at the ‘center’ of any debate. He is not the story; the surveillance program is. But surely, some background on the reporter who broke the story would let readers evaluate his credibility? I’m afraid this claim does not withstand closer scrutiny even though it smacks of a pleasing epistemic rectitude: ‘all we are doing is investigating the source of this story’. To focus on him  is a a straightforward misdirection of journalistic effort. The New York Times should be concentrating on uncovering more details about the surveillance programs in the Greenwald articles, but not about Greenwald himself.

(Incidentally, just for good measure, the New York Times article includes a couple of ad-hominem slams against Greenwald:

Gabriel Schoenfeld, a national security expert and senior fellow at the Hudson Institute who is often on the opposite ends of issues from Mr. Greenwald, called him, “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”

Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.”

There is praise for Greenwald too, but all of this is really besides the point.)

The correct thing for New York Times journalists to do at this point is to get to work on verifying the authenticity of the documents that Greenwald’s source has made public and to explain to their readers:  what their legal and political implications are; how these programs fit into the context of the surveillance that the previous administration kicked off; what the relevant sections of the Patriot Act are; whether the defenses made by administration officials stand up to scrutiny or not; and so on. The New York Times has done some of these things, but my point is that at this moment, those  ought to be its exclusive focus. There is a chance here for a serious journalist to expose the workings of a provably out-of-control government; anything else is a distraction at this stage.

This kind of missing-the-point is not restricted to the focus on Greenwald. Consider for instance, the stories on the Bradley Manning trial. As Matt Taibbi points out, most media outlets are obsessed by his personal background and are rather spectacularly missing the forest for the trees:

The CNN headline read as follows: “Hero or Traitor? Bradley Manning’s Trial to Start Monday.” NBC went with “Contrasting Portraits of Bradley Manning as Court-Martial Opens.”

Unsurprisingly, the citizenry marches on, its attention diverted.

The Spying Will Continue Until Morale Improves

The New York Times, picking up on a Guardian story by Glenn Greenwald, reports that:

The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs aVerizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

This policy is a straightforward continuance of the Bush administration’s massive surveillance effort, similarly directed by the NSA in co-operation with telecommunications companies. The scope of the order indicates the data collection is indiscriminate: it is not directed, targeted or narrowly focused. (The court order does limit the data collection by time.) Rather, it is a broad sweep, a trawl to net the NSA’s desired catch. This is not surveillance to confirm a hypothesis; this is surveillance to try to frame one. This is not surveillance as an aid to detective work; this is surveillance as an integral component of that work. As Greenwald notes:

FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

Especially interesting, I think, is the reaction to the story. By that I do not mean the reactions of politicians, journalists, and privacy advocates. Rather, if one is allowed to believe that comments on the New York Times story are at all reflective of the ‘word on the street’, then a couple of apologetic samples are depressingly interesting.

For instance, ‘pjd’ from Westford writes:

I’m surprised that no one has noted the dates in the order. The order was signed on 4/25/2013 which is ten days after the Boston Marathon bombing.

This response is emblematic of the ‘it’s justified because of the terrorists.’ Never mind that nothing about the Boston bombers seems to indicate any kind of widespread conspiracy that would justify such a massive surveillance effort.

And ‘Kurt’ from NY writes:

Ordinarily, this kind of data collection could be interpreted as overly broad and a threat to civil liberties….But, again, given just how disturbing it seems on its face, if a judge is willing to make such an order and Congress is aware of it, it would seem to suggest that there is legitimate need in response to specific threat. Which would also say that, given the security classification it has been given, for this matter to be public knowledge as it now is is possibly injurious to national security.

Here we have the standard ‘the government must have a reason even if they aren’t telling us, and that’s fine by me.’ The trust displayed here in a judicial and executive branch that have done nothing to justify it is touching.

And this statement by the Obama Administration is equally risible:

The information acquired does not include the content of any communications or the name of any subscriber.  It relates exclusively to metadata, such as a telephone number or the length of a call.

Why is this not even remotely comforting?

Glenn Greenwald on Civil Liberties and Their Willing Surrender

Today, at Brooklyn College, Glenn Greenwald delivered the 39th Samuel J. Konefsky Memorial Lecture. I was lucky enough to be in attendance and thoroughly enjoyed watching this top-notch muckraker and gadfly in action. I have often seen Greenwald speak on video but this was the first live presentation I have witnessed. It was everything it was promised to be: Greenwald was passionate, precise and polemical. The title of his talk was ‘Civil Liberties and Endless War in the Age of Obama’ and so, appropriately, Greenwald began by offering a definition of ‘civil liberties‘: a set of absolute, unconditional constraints on governmental and state power, ones defined and defended by the people. These should be so stark and clear that no abridgments should be possible or tolerated; those who suggest or support these show themselves to not possess a true understanding of the concept.

With this uncompromising bottom line clearly articulated, Greenwald then presented a tripartite analysis of why, despite the presence of the US Constitution and its Bill of Rights, the state of civil liberties in the US today appears to be quite as problematic as it is and why the US populace has so easily acquiesced to this denial of their constitutional privileges.

First, the US has been since 2001, in a state of ‘perpetual war’, against poorly defined enemies, with no geographic or temporal limitation. This war ensures the endless invocation of natural security as a reason for the attenuation and abuse of civil liberties, whether it be surveillance, indefinite detention without trial, or the assassination of American citizens without trial. The lessons of history have been learned well by the administrations that have held power in the US over the past dozen years: war provides refuge for roguish government behavior of all kinds, and nothing quite prepares a populace for the surrender of civil liberties like the threat of an enemy, one whose threat can only be repelled by increasing the powers a state commands.

Second, the surrender of civil liberties is made more palatable when their abuse by the state appears to be directed against a demonized minority. The gullible majority, convinced that these systematic corruptions of the Bill of Rights remain confined to just this hapless lot, and convinced that their liberties are being protected as a consequence, gladly sign on and form cheering squads, unaware that soon the baleful eye of the powers-that-be will be turned upon them. In the American context  Muslim-Americans have borne the brunt of the the post-911 ravishing of the Bill of Rights. There is little sympathy for them in most parts of the American polity, but the damage done to what is considered ‘normal’ is real enough. Our civil liberties were, and are, next.

Third, yesterday’s ‘extreme’ or ‘radical’ is today’s normal. When the Patriot Act was first passed, it provoked vigorous debate and contestation even in a country still traumatized by 9/11. Its renewals have provoked little debate and attention. We live in a post-Patriot Act US. Its draconian provisions are now the new normal. In this context, I’d like to note once again, the seemingly-useless but very-effective-in-getting-citizens-used-to-the-idea-of-random-searches subway searches in New York City.

Greenwald spoke on a great deal more, including, most importantly, how concerted, determined, political activism by the citizenry still remains, the only and best way to safeguard and preserve the Bill of Rights.

My brief notes above are merely a sampler; catch him at a speaking venue near you if you can.

Random Searches on the New York Subways: Getting Used to the Stop-n-Frisk

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.