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Vail Law: Musings on airport groping and privacy

I feel like I’m in high school again, what with all this groping and all the whisperings of who touched what on whom. Except this time, instead of furtive gropes, pokes, nibbling and squeezes in the murky back seat of your battered ride, the groping is taking place in the bright glare of your nearest municipal airport and all the world is watching. Thank you, Transportation Security Agency, for preserving our security, if not exactly our dignity.

While in-flight security is certainly a laudatory goal (the need of which has been made all too real since 9/11) a significant constitutional concern revolves around the expectation of privacy. This is a nation which was founded upon certain reasonable expectations of privacy, and privacy, if not the red corpuscles of the lifeblood of democracy, is at least the plasma coursing through its veins.

What, then, is the “reasonable” expectation of privacy that any of us has in this age of lightning-fast connections, media saturation and Big Brotherism in all its shapes and guises? And, if enough of us are troubles by latex-gloved gropings in the airport, shouldn’t that matter? Isn’t, after all, “democracy” at least in significant part, the common want and weal?



Cameras in classooms, casinos

In 2004, the school year began In Biloxi, Miss. with cameras in every classroom and school hallway in the district. The Biloxi school board proudly crowed that it believed it was the first school district in the nation to saturate every school room with “real time” feeds. Principals and school board members needed only to enter their password into their laptops and they could spy with alacrity on any child in any classroom. If little Johnnie was drowsing through algebra, could an electric jolt from the principal’s office be far behind?



Is it just me to whom this type of invasion seems downright creepy?

I was recently in Las Vegas, co-world capital – along with London – of the spycam. While it’s not unusual for cameras to invade public places, hotel elevators, and more, the casinos have taken the art of intrusion to new heights – not an inch of any casino (with, hopefully, the possible exception of the bathrooms), is out of sight of the sweeping, scouring cameras. You only have to look up to see them winking from behind acrylic domes.

Since 9/11, and in the name of national and personal security, all of this has gotten worse. We may be safer, but are we as free as we once were? Is this the nation that we really want? Is this sort of personal invasion a white flag hoisted to the terrorists?



What all of this has to do with, of course, is the expectation of privacy.

Privacy and due process

The “right” to privacy derives from the due process clause of the 14th Amendment and insures a “reasonable” expectation of privacy. The question that all the scrutiny of cameras, gropes and prods begs is, if we’re being watched (and now, irradiated, microwaved and felt up) in everything we do, how can any expectation of privacy be “reasonable?”

And speaking of the Internet, how does its nearly limitless capacity factor into the equation? As you likely know, the internet has become rotten with postings that have driven teens to suicide and the rest of us to question what balance is the right one.

So, in this increasingly fast-paced, neurotic age, the questions looms large – do any of us any longer have a reasonable expectation of privacy, or shall the constitutional guarantees be damned? At the very least they must be reconsidered. The world is simply spinning too fast to apply old standards to what has swiftly become a society quite different than it was in the last century, albeit a mere 10 years ago.

One of the great virtues of the constitution (with apologies to the strict constitutionalists among you) is its proven adaptability, its ability, like a Stretch Armstrong toy, to adapt to the pressures of modern times and challenges. And this adaptability is what will usher in more reason and restraint. It is, however, our patriotic duty to lift our voices, to let those who govern through the collective of our voices, and let them know when lines of privacy and decency have been crossed.

Freedom and democracy are – and have always been – about balance, about weighing good against evil, right against wrong, and individual against the whole. It should be borne in mind too that there is no sure thing. Even with the pat-downs, X-raying and microwaving there are – and never can be – any guarantees in the escalating arms race of terror and security.

It is worth asking, “who are we as a people and who do we want to be”? Do we want to sacrifice a little risk for a little greater freedom or vice versa?

The Constitution guarantees each of us a reasonable expectation of privacy. The question, as security measures morph then, is what is reasonable? Unless we let our legislators know where we think the line should be drawn, they will be left to hash and thrash it out alone.

Speak up.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He lectures for continuing legal education in the areas of real estate, development and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at robbins@colorado.net.


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