Opt-Out Day and Consequences

Part 2 of 2 of a series on TSA searches and Opt-Out Day

The first post in this series argued that the TSA search policy violates a fundamental liberal right to sexual privacy.  However, the fact that people have a reasonable claim that their rights are being violated does not ipso facto make Opt-Out day a justifiable response.  The mere fact that citizens have a rights claim against a particular policy does not justify the citizens employing any available response to enforce that right.  Murdering TSA agents, for example, is morally out of the question.

So what are the costs associated with opt-out day?  It’s been estimated that pat-downs on average take 4 minutes per person, whereas each scan takes about 10 seconds.  Thus, each person who opts out makes everyone behind them wait an extra 3:50 to go through security.  That not may not seem like much time, but given widespread public outrage at the TSA, and the fact that the explicit aim of Opt-Out day is to "slowing down [TSA's] security theater with creative protest," it seems that Opt-Out movement is going to cause a lot of people to miss their flights, potentially even preventing some from getting to their families in time to celebrate the holiday.

Does this matter morally?  If we think the prevention of pain is an important moral end, it probably should.  Everyone who’s been forced to miss a significant family event knows that it’s a miserable experience both for you and your family.  Many contemporary moral philosophers and neuroscientists have come around to the idea that purely emotional pain can be as bad as physical pain.  If that’s the case, then separating families during the holidays is morally bad, and hence causing that separation is a serious defect in Opt-Out Day.  Further, there are also economic costs to big travel delays on holidays which ought to be considered.

Liberals tend to believe that fundamental rights may not permissibly overridden for such utilitarian reasons.  However, the question here isn’t rights versus utility – it’s a specific enforcement mechanism versus utility, which is quite distinct.  The most salient difference is that enforcement mechanisms, to be used justifiably, must have a plausible chance of successfully enforcing the right in question – in this case, getting rid of scans and pat-downs.  It’s unclear that Opt-Out Day passes this test.  Is it really plausible that President Obama, after publicly defending the TSA measures as necessary to prevent terrorism, is going to reverse himself because of travel delays?  Unlikely.  Further, the protest will only have any chance at succeeding, even a slim one, if it really does cause enormous delays in Thanksgiving travel.  But if that's the case, then the utilitarian costs (economic damage and psychological pain) will necessarily be quite high.  Any efforts to raise the profile of Opt-Out Day necessarily are also raising the costs associated with it.

Thus, even though the organizers of Opt Out day are right to be incensed about a violation of fundamental rights, and entirely within their legal rights to protest in the fashion they've chosen, there’s good reason to the strategy is morally suspect.  Better to pursue the time-honored strategy of lawsuits and lodging protests with elected representatives than engage in what seems more like an expression of anger than a serious attempt to vindicate individual rights.