By Mike Dorf
Over the weekend, Tobin Harshaw blogged for the NY Times on the controversy surrounding the TSA's implementation of the full-body x-ray scans at airport security checkpoints. Among the authorities quoted and cited by Harshaw is yours truly, with a short excerpt from my January FindLaw column on the cancer risk associated with the machines. Harshaw characterizes me as thinking that "the health concerns are highly exaggerated." I'm not sure that's how I would have put it, although I did say in the piece that by any measure, the cancer risk is tiny. For me, the most salient factor is that there's substantially greater radiation exposure from flight itself (due to cosmic rays with diminished atmospheric protection), as I explained in the column.
I received some email responses in the last couple of days pointing out that the official figures for the machines could be wrong and that the per-rem risks from the machines could be greater than the per-rem risks from cosmic rays during high-altitude flights because the former are concentrated in the skin. Here I'll simply confess that I have no expertise in such matters. My column was expressly an analysis of how to think about the issue, given the then-publicly-available numbers. The closest I came to a contribution of my own was simple arithmetic. And I expressed skepticism about the cost-effectiveness of the machines, all things considered.
Fast-forward to the current controversy, which is fueled at least as much by privacy concerns as by health concerns. The proposed national opt-out day is an interesting example. Having chosen the busiest travel day of the year as the time for opting out of the x-ray scanners, it's a little rich for the organizers to deny any "intent or desire to delay passengers en route to friends and family over Thanksgiving." Really? Then why choose a day when airport security lines will be at their longest and the nerves of passengers at their most frayed? If there's no intent there's at least callous indifference.
To be clear--again--I'm not endorsing either the TSA's machines or the alternative of a pat-down. Nor for that matter am I especially impressed with the fight-the-last-war mentality of the TSA more broadly. But much of the awfulness of air travel these days is generated not by the government but by the private sector. Remember leg room? Remember when you could check a bag without a fee? Was it not entirely predictable that the imposition of baggage fees would induce passengers to cram as much as physically possible into their carry-on bags and "personal items?" These developments are almost entirely products of free market competition and the overall preference of consumers for low prices. Even if one thinks that, on balance, airline deregulation over the last 32-some-odd years has brought net benefits, it's notable that many of the worst features of air travel today are exacerbated by the competitive pressures that deregulation unleashed.
People do complain about these aspects of air travel, of course. So much so that it's a cliche. But in this, our bizarrely libertarian moment, those complaints are taking a back seat to complaints about Big Brother. And all of this leads me to ask a question from a place of genuine ignorance: Are the right-wing libertarians now frothing about the TSA the same people who, during the Bush years, were happy to red-bait anybody who raised objections to indefinite detention, torture, etc? And if not, where were they then?
There is, to be sure, a way to reconcile this combination of anti-government paranoia and hyper-patriotic McCarthyism: It's okay for the govt to x-ray and/or pat-down passengers, so long as they're sufficiently