Some Religious Groups Find Airport Screenings Intrusive

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Will stepped-up airport passenger screenings, in the name of national security, become intrusive for people of faith? Jeffrey Rosen, a law professor at George Washington University Law School, has written extensively about privacy and specifically about this issue in his book "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age". Host Michel Martin speaks to Rosen for more.

MICHEL MARTIN, host:

I'm Michel Marti, and this is TELL ME MORE from NPR News. In a moment, we'll find out more about Buddhism. Recently, Fox News' Brit Hume suggested disgraced golf star Tiger Woods would do well to seek redemption as a Christian. Woods has said he follows Buddhist practice in some form.

But we're asking: What do people really know about Buddhism? We'll speak with the author of a Buddhist community blog in a few minutes. But first, we return to the subject of that alleged airport bombing on Christmas Day. It has sparked intense discussions about the need for stepped-up passenger screenings at the airport, as we've discussed.

The new machines are being deployed at airports around the country that show the body beneath the clothes, and that has sparked debates about modesty. But what if modesty is not just a personal preference but a matter of religious principle and practice? The aspect of the body being viewed by a member of the opposite sex outside the family is, for some people, an affront to their religious beliefs. So we wanted to ask: Can these two principles, national security versus modesty as a matter of faith, be reconciled?

Jeffrey Rosen, a law professor at George Washington University Law School, has written extensively about privacy and specifically about the issue of screening in his book "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age," and he's with us now. Welcome, thank you for joining us. Happy New Year.

Professor JEFFREY ROSEN (George Washington University Law School): Thank you, Happy New Year.

MARTIN: You know, it was interesting to me that you actually wrote about this some years ago.

Prof. ROSEN: It's true. Then it was a science fiction question: Could we have a machine that both protected privacy and revealed non-metallic objects? And there was. This was the blob machine. You could basically have the X-ray machines that are being deployed that can see under clothing, plastics and ceramics, but you take the image of the contraband, and you put it onto a mannequin, a sexless mannequin, and you scramble the image of the body into a non-descript blob. So this protects privacy and security at the same time.

MARTIN: There is a technological solution, but for whatever reason, as you've discussed, this isn't preferred. This does not seem to be the preferred solution, and I wonder why that is.

Prof. ROSEN: You know, there are some claims that the blob version would make it harder to know exactly where the contraband is, if you've got a trouser-bomber. Others responded you actually could see it with secondary screening.

But the TSA has come up with a sort of compromise. They have the screeners in a separate room so the people who are looking at the images can't see the bodies. And also, in some of the locations, they claim that they're scrambling the face, although not the body itself.

MARTIN: But that's not sufficient for matters - as I say, for some people, as a matter of personal preference, that might be sufficient, but for persons of certain religious practices - I'm thinking specifically of Orthodox Jewish women, I'm thinking of many observant Muslim women, it is simply religiously unacceptable to be viewed by a person of the opposite gender.

So I wonder if the religious freedom question has been addressed, and how can it be addressed?

Prof. ROSEN: It's such a fascinating question. You're absolutely right. Islamic canon law prohibits men from gazing directly at women, especially unveiled women, requires women to glance down demurely when a man approaches, and Talmudic law says even the smallest intrusion by the unwanted gaze causes injury.

So if your neighbor puts up a window in a common courtyard, the window has to come down whether or not you object because you can't alienate your privacy, your right not to be gazed on, without consent any more than you can sell your kidneys or sell yourself into slavery.

So there's absolutely this profound clash between these religious questions and the technological questions, and the technological fixes which might satisfy secular people would not satisfy religious law.

MARTIN: Has this been addressed?

Prof. ROSEN: No, and it's just going to have to be this week because now that the government has said that they're going to single out people from 14 countries, especially Muslim passengers, for special use of these machines, then the problem absolutely comes to a head.

MARTIN: And what's interesting is that in England, for example, where some of these body-scan machines are already in effect, children under the age of, I believe it's 11 or 13, are not subjected to them because there's a concern that - creating unclothed images of children is inherently violative of, you know, it raises questions of child pornography, as it were, and so as a consequence young children are not subjected to these body-scan machines, and it's interesting to me that the religious principle question does not yet seem to have been addressed.

And I wonder: How would you recommend - obviously this is a question that we're just now engaging, but as a constitutional law professor, how would you address this question? How do you engage it? How would you advise the government if you were asked to do so?

Prof. ROSEN: Well, first you want to use the machines only when there's some actual evidence of wrongdoing. So people shouldn't be strip-searched without some cause. You want to design them in the most blob-like way possible. You want to ensure, most importantly, that the images are not stored. That's a main concern, and the TSA will not say definitively whether they're stored or whether they're passed on. There was some evidence that images were stored of Muslim men and women in Baghdad. So you'd want to have clear oversight and rules.

But that still raises the question, there are going to be some people, even with a lot of privacy protections, for whom this is a violation of their deepest religious principles, and they should have the option of a screening procedure that does not violate those principles.

I don't know if a face-to-face examination with a woman screener would or would not violate these Islamic and Orthodox Jewish canons. If they didn't, then women and men should have that option. Of course, that's a much more intrusive thing. Just because you're a religious Muslim or an Orthodox Jew, you have to go through this intrusive face-to-face screening. But that's usually the way religious accommodation law works. It wants to maximize individual choice while still allowing state interests to be pursued.

MARTIN: And how would that work now? Do people have the option of opting out of the body scan and then being physically searched, presumably by a person of the same gender? What does that entail? Does that mean removing all of your clothing? I don't know. Certainly in some places one removes a face veil for those who wear those, but what would that entail? Would it involve an intrusive search? I mean a strip search in effect?

Prof. ROSEN: You're right that right now you do have the option of not going through the machines and having the face-to-face screening. And I'm pretty sure that the question of veiled woman and screening has come up before, and I'm going to have to say that I'm not sure what the disposition was but I think that it does involve some sort of face-to-face encounter with someone of the same gender.

MARTIN: Are you surprised though that this - I know you wrote - as I said, you wrote your book about this some years ago. It was post-9/11 but sort of a couple of years before now. Do I have it right, that you really didn't expect this to be a kind of a live ongoing conversation or...

Prof. ROSEN: What I'm surprised by is how little demand there was for privacy even among - in calm times, because these machines could've been designed in more privacy-protected ways. They still can, without any threat to security. But we just hear the same sort of unsupported claims. Michael Chertoff, the Homeland Security secretary who's representing several of the companies who, that would get contracts with these naked machines, saying that the bombers would've been stopped if we only put up the machines.

MARTIN: Well, just to clarify, he has a financial relationship with several of these companies.

Prof. ROSEN: Yeah. They're his clients.

MARTIN: So - yeah.

Prof. ROSEN: And he's certainly entitled to defend the machines, but it's not true that these machines are actually effective for security. The one example of an airline plot that was thwarted, the London plot a couple years ago - human intelligence, and it was really the people were singled out before they got to the airport. So I think - and recently, just the other day, we had this event with the Slovakians and the baggage mess-up which suggests once again you put up a technological machine that looks for one kind of thing and it shifts the terrorists to a different mechanism.

It's just foolish. It's always been a form of security theater, as Bruce Schneier has said, to assume these naked or blob machines could actually keep us safe. No reason to deploy them if there's some individualized suspicion. But the idea - I just, I guess when you asked what I'm surprised by, the idea that anyone going through an airport should have to be subjected to a strip search for not very much security benefit, that surprises me just because it's so unnecessary.

MARTIN: You say security theater, meaning what? That it's designed to evoke a feeling in us as opposed to achieve a natural result. Is that...

Prof. ROSEN: It makes us feel safe even though it doesn't empirically make us safer.

MARTIN: Jeffrey Rosen is a George Washington University law professor. He's the author of "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age." He's written also several articles about that and we'll have links on our Web site to steer you to those if you want to read them for yourself.

Thank you so much for joining us, and Happy New Year.

Prof. ROSEN: Thanks.

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