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Opt-Out Day and Rights

Part 1 of 2 on the TSA and Opt Out Day


To say that the American Transportation Security Agency's new airport security policy requiring all passengers to either be scanned by a machine that sees through one's clothes or submit to an invasive pat-down by TSA agents has generated a great deal of controversy would be putting it mildly.  Fuelled by horror stories of TSA agents destroying a bladder cancer patient's urostomy bag and traumatizing rape survivors, a trickle of anti-search sentiment among security analysts has grown into a flood of public outrage.  

Today is the first test of whether American flyers are willing to put their bodies where their mouths are: National Opt-Out Day.  The idea is that on one of the busiest flying days of the year, the day before the Thanksgiving holiday, flyers will en masse opt-out of the scanners and ask for the pat-down, creating massive delays as a form of civil disobedience.  I'd like to here examine two ethical issues raised by the  TSA searches and National Opt-Out day.  In this post, I'll present a liberal argument as to why the TSA's policy violates fundamental rights; and in a follow up, I'll argue that Opt-Out Day is an ethically irresponsible form of defending that right.

The Right to Keep Private Parts Private

Typically, the most virulent complaints TSA policy have focused on their sexual character.  Scans are described as being forced to pose for pornography, and pat-downs compared to physical  molestation.  We might, then, see the complaint against the TSA as an assertion of the generally recognized right to privacy in sexual affairs – what we do with our bodies is our own business, and no one, including agents of the state, can justifiably interfere with our free choice or coerce us into sexual behaviour we would not freely choose.  

But from whence the right to sexual privacy?  There a number of possible answers to this question – libertarians, for example, would argue from the general principle of self-ownership – but I'll develop a position based on a liberal idea of fundamental public rights.  For most political liberals, the central aim of political society is to create the conditions that allow individuals to maximally act in accordance with a freely developed notion of who they are as persons and what they wish to do with their lives.  The state can justifiably interfere in individual conduct when private actions restrict the capacity of others to make free life choices, but not otherwise.  Since what one chooses to do with one's body, and who one chooses to show it to, is a fundamental element of our self-identity, the state has no business forcing us to expose ourselves to or be touched by anyone.  The essential importance of sexual identity and free sexual choice to our self-identity is what gives us fundamental liberal rights in the sexual realm.

Many of the opt-outers, then, are arguing the TSA policy violates such fundamental liberal commitments.  And while they acknowledge, like most liberals, that these rights are not absolute (and can be justly overridden in extreme enough circumstances), they believe that enhanced security is not a sufficient justification to violate such fundamental rights.  Liberty trumps security, especially when many security experts believe the TSA searches don't do all that much in terms of mitigating the risk of terrorist attacks. 


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