- BIOETHICS FORUM ESSAY
Full Body Scanners: A Privacy Problem or Something Else?
Whether or not you traveled over the Thanksgiving weekend, it was hard to avoid the controversy fueled by the media over the use of full body scanners at airports across the United States. The rousing attempt to make November 24th (one of the busiest travel days of the year) National Opt-Out Day fizzled as few of the 2 million passengers chose the more time consuming, and arguably more invasive, pat-down. Although many opponents assert that full body scanners amount to an invasion of privacy, is that the case? A more nuanced examination of this question might reveal that their use can in fact comport with certain conceptions of privacy, but it still raises concerns.
Helen Nissenbaum, professor of Media, Culture and Communication at New York University, sets forth a notion of privacy as contextual integrity, which “ties adequate protection for privacy to norms of specific contexts, demanding that information gathering be appropriate to that context and obey the governing norms of distribution within it.” According to this formulation, privacy is context-dependent and behavior that amounts to a violation of privacy in one context may be accepted, and in fact encouraged, in other contexts. Disclosing detailed and intimate personal medical history is necessary when consulting with your physician, but not with your accountant.
A policy forum report on contextual integrity coordinated by The Hastings Center as part of its partnership in HIDE (Homeland Security, Biometric Identification & Personal Detection Ethics), explores these issues. In the current “age of information” where governments and private entities are increasingly collecting “bioinformation” such as fingerprints, iris scans, and DNA — sometimes without individuals knowing it — the very notion of privacy, classically understood, is becoming a thing of the past. The report suggests that individuals are not opposed to biometric technology per se, but rather the way that information is collected, stored, and shared. Although the forum took place last year, before full body scanners came into wide use, its exploration of contextual integrity raises important questions about how to balance public security with personal privacy.
Measures taken in the interest of national security and law enforcement pose particularly difficult questions about the applications of privacy. We as citizens simultaneously expect our leaders to protect us from threats foreign and domestic, and to do so in a way that respects our liberty, autonomy, and personal integrity. Unfortunately, national security by its nature requires surveillance, intrusion into personal affairs, and at times trumping of rights, such as privacy, which are otherwise assumed to be sacred. Although full body scanners might appear to violate privacy, when viewing their use through the lens of privacy as contextual integrity, interesting questions arise.
If full body scanners were being used as the Transportation Security Administration asserts — scans are not being saved, the reviewing officer always works remotely with no chance of linking the person and the scan, and technology is able to sufficiently blur bodily images — and if the public agreed that their use is warranted, then they may not amount to an invasion of privacy by the contextual integrity standard. But, as evidenced by the blizzard of complaints chronicled in news articles and editorials around the Thanksgiving weekend, the public might not agree that their use is warranted.
Some may argue that by virtue of moving and traveling in a public space, people must adjust their ideas about the norms of privacy; airports are public spaces in which societal security and safety trump individuals concerns. The acquisition and use of scanned images of individuals would appear to be appropriate in this context. Full body scanners may in fact be seen as more effective at achieving the values of safety, security, and efficient movement through the system than other techniques, such as pat-downs. Some may even assert that full body scanners are a privacy-enhancing technology compared with full-body pat-downs.
However, when assessing whether full body scanners meet the standard of contextual integrity, one must contemplate how to reconcile the disparate expectations and understood norms of the traveling public. While the basic context of their use — airline travel — stays static, the expectations and norms may be fluid across individuals and societies. Some individuals merely want safe passage to a destination, while others take into account ease of travel, time, and coherence with cultural, social, and religious beliefs
Even if the use of full body scanners may conflict with some personal norms and beliefs, their use still might not constitute a violation of privacy, per se. If society deems the use of the scanners and acquisition of the information therein necessary and proper for preserving national security, their use has satisfied the contextual privacy-preserving conditions of appropriateness and distribution of information. But such justification should not be used to universalize the deployment of full body scanners as a matter of public policy because serious concerns persist.
Whether the scanners emits levels of radiation hazardous to one’s health is still debated. And they may even be seen as violating human rights – specifically, the right to dignity. According to this perspective, everyone has a human right to an intrinsic level of human dignity whereby they are allowed to make autonomous decisions about who views and how others view their bodies.
Unlike other security measures at airports, such as prohibitions on the kinds of items that can be carried onto an airplane and the requirement to remove shoes when passing through a security checkpoint, full body scanners cross the threshold from limits on how we travel to an exposure of who we are as persons. An image, even if blurred and not directly linked to an individual, is still a representation of us as individuals. If the images from scans or aggregate data are being stored and analyzed later despite TSA assurances, then the scanners might also raise significant concerns about the use of personal data. The collection of personal data in ways that are not made clear to the public would call into question the contextual integrity of security enhancing measures.
Satisfying contextual integrity requires a clear understanding of the technology’s use in its given context. According to the HIDE policy forum report, Europe is far ahead of the U.S. in thinking about how data and the flow of information should be regulated for new technologies in different contexts. A better understanding of the collection and dissemination of information by security technology might lead to a more meaningful discussion of how relative value should be attributed to security, privacy, and other social norms.
Given uncertainty about the extent to which full body scanners are used, their deployment might violate contextual integrity of other social norms such as appreciation of cultural, religious, and social beliefs about viewing of the body; preservation of human dignity; and transparency about the collection and dissemination of personal data. Just because these concerns might not conflict with contextual integrity of privacy does not mean that they should be cast aside in order to permit the further deployment of full body scanners. For these reasons, it seems premature to make full body scanners the primary screening technique at airports until all parties with vested interest are able to more meaningfully engage with governing officials about their concerns and seek to maintain the contextual integrity of social norms beyond simply privacy.
Ross White is a research assistant at The Hastings Center.