THE MAGAZINE

Trick and Treat

By Sherry L. Harowitz

A few months ago I wrote about our dwindling privacy protections and a reader wrote in disagreement, saying that only those who talk to terrorists have anything to fear from wiretaps (see “Letters” page 16). On reading it, I thought I’d counter that just because you don’t talk to terrorists doesn’t mean you want the government to hear everything you say.

But I’m here to confess that I’m a hypocrite, because when the U.K. arrested the 9-11 wannabes in August, I hoped that the police in the U.S. could quickly find if there were accomplices here—through phone calls or e-mails or any other forms of communication, privacy be damned.

Clearly, the toughest question facing us today is where to draw the line between security and personal freedom such that we have enough of the former without sacrificing too much of the latter.

That question was recently taken up by the United States District Court for the Middle District of Florida, Tampa Division, which was asked to rule on the constitutionality of what was called “mass suspicionless pat-downs” of anyone wishing to watch an NFL game at Raymond James Stadium.

The court ruled that the Tampa Sports Authority, a state government agency that had implemented the pat-downs after the NFL mandated them, “has not established that its concern for public safety is based on a substantial and real risk” that would justify this invasion of privacy. The fact that Congress had recognized stadiums as at-risk places warranting no-fly zones and that terrorists had downloaded some site maps of stadiums elsewhere were not deemed by the court to be sufficient evidence of a real risk.

By contrast, mass suspicionless container searches, which are judged less intrusive than pat-downs, have been found to be constitutional at subways, because 40 to 50 percent of terrorist attacks worldwide have been directed against transportation systems. They have likewise been allowed at courthouses because of actual incidents. I wondered as I read the decision, must a stadium get blown up for the threat to be deemed real? That view makes it a bit difficult for the government to be proactive.

But the court also noted that the pat-downs had not been proven to be the only way to ensure security. They further cited the fact that even higher-risk venues, such as courts and airports, had largely been satisfied with magnetometer searches, not physical pat-downs, for persons meriting additional attention.

Only time will tell whether that ruling will stand or whether it was, indeed, the right place to draw the line. Meanwhile, as Halloween approaches, there is no shortage of frightful characters lurking. They know that freedom is the treat we enjoy. The trick is preserving it.

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