New York Subway Searches, Privacy, and the Fourth Amendment

Eric's Grumbles responds to one of my posts responding to one of his.



Now, Eric, before I get started on the issues you managed to embed in your attack tirade, let's pull a few quotes from your response:

Wow, where to start with this mishmash of thought!



The Constitution is written in plain English, albeit late 18th century vernacular. But that is not so different from today's English that an 8th grader can't understand what it says. In fact, I first read the Constitution in its entirety and analyzed its meaning in 8th grade, in my US History class. This clearly means to say that I have a right to be secure in my property, and not just my house. I hate to restate the language, since it is so clear, but apparently I must.

This leaves out misstatements of my points and straw men which I intend to demolish later. These are pure ad hominem attacks. Where, precisely, in my response did I say anything to deserve either of these? That you perhaps do not understand my position, or choose to pretend you do not understand my position, is not grounds for this.



Basically, I thought better of you and if this is an example of how you deal with an argument perhaps I would be better off not interfacing with you. If we cannot agree to go after the issue rather than the individual espousing it, I'm afraid this will be my last communication to you.





Now, to the issues:



First off, you either misunderstood or misstated the effects of the following passage:



Me:

That it is unconstitutional under the Fourth Amendment, or as a violation of privacy, is incorrect and at best an easy excuse to harrass the government. My right not to be killed or wounded in a public conveyance trumps your right to keep explosives in your backpack, or to keep items of whatever nature private in your backpack, and one has no reasonable expectation of privacy in a public conveyance.

Eric:

You don't have a "right to privacy" in a public place, thus the 4th Amendment doesn't apply.

That's public conveyance, actually. The distinction between what I actually said and what Eric said I said is important, for reasons that become clear later. See below.



He actually spends paragraphs on it later:

Now, personally, I wouldn't tackle this problem with a lawsuit as the NYCLU did. If I lived in New York and a Transit Authority police officer tried to search me, I would demand to see a warrant and then refuse to be searched when the officer couldn't produce one, nor show probable cause to my satisfaction that I was a threat or public danger. If I was prevented from entering the subway, or arrested, I would fight the case as far as I had to, which I suspect wouldn't be very far, to show that the attempted search, and subsequent arrest, was unconstitutional. If I were simply prevented from entering the subway, I would bring a lawsuit under Article 1 of the Fourteenth Amendment:



1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.



The important part is that no state shall make/enforce laws that abridge my privileges and immunities, specifically search and seizure and the right to peaceably assemble.

The problem is, you're hunting the wrong target.

A public-benefit corporation chartered by New York State in 1965, the MTA is governed by a 17-person Board. Members are nominated by the Governor, with some recommended by New York City's mayor and the county executives of Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam counties, with the members representing the latter four casting one collective vote. The Board also has six rotating non-voting seats held by representatives of organized labor and the Permanent Citizens Advisory Committee (PCAC), which serves as a voice for users of MTA transit and commuter facilities. All Board members are confirmed by the New York State Senate. Source here

In short, it's a corporation. Publicly chartered, publicly controlled, but a corporation - not the state, not the feds, not the government. They issue bonds to investors in their own name. The related entity supplement does not discuss any aspect of government at any level. Various government agencies are on the board of directors, but it remains a corporation legally independent of them as much as Microsoft is legally independent of Bill Gates. When you deal with MTA, you are not dealing with a government, federal, state, local, or otherwise. YOU ARE DEALING WITH A CORPORATION. Yes, the Mayor of New York has a relationship with the corporation. This doesn't mean that it is not legally distinct. Corporations are not bound by the Fourth Amendment - As I understand it, only a governmental entity can be the proper object of a fourth amendment suit. If I had realized you didn't know this, I probably would have stated it more explicitly, as I do not know of a public conveyance which isn't run by a public corporation. It's kind of universal in this country, although there are likely exceptions somewhere.



This corporation has a legal duty of care to take all possible steps to ensure that the conveyances are safe, not only from poor practices on their part, but from actions of third parties who may have active hostile intent. You are under no obligation to do business with the corporation, and aside from things such as Title VI covering non-discrimination, the corporation is under no obligation to do business with you. If it announces it will allow no riders wearing green on March 17th, and you want to ride, you'd better leave the green leprechaun hat at home. They want to search every backpack going in, the state of the law allows it. If you refuse to be searched, they are within their rights not permit you to ride. If you sue, you'd better be prepared to pay their attorney's fees.



More Eric:

Moving onwards with Dan's arguments. The idea that Dan's right to be protected from a terrorist means that the government can take away (or trump, to use his terms) some right of mine is the entire foundation for the Patriot Act, among other things. Yet, in historical terms, when the US has taken such actions, we have later decided that they were wrong, or even unconstitutional. The clearest one, of course, was the relocation and internment of American citizens of Japanese descent (Nisei) during World War II. This was clearly unconstitutional and was based in just the concept that Dan expresses. The fear that one of these Americans might be a spy or saboteur caused us to infringe their inherent rights. Not only was it wrong, morally, but it was also ineffective.

This is a classic logical fallacy: The straw man. Setting up a different example which you flame away at, and burn up. To many people, in many situations, it might appear that you have made a valid argument. You haven't. Previous examples are not this one. The USA PATRIOT Act has been ruled constitutional, as a matter of fact. (As an irrelevant aside, you might talk to Michelle Malkin as to whether Internment was effective and reasonable. We already know it was ruled unconstitutional, correctly in my opinion, albeit by a generation of justices who I'm not convinced understood the situation.)

The idea that somehow Dan's rights are more important than mine is a fallacy. It creates a set of citizens who have more rights than others. And it is part of the slippery slope from individualism to collectivism. If you believe in life, liberty and property, limited, constitutional government and the individual over the group, then you have to see this fallacious argument for what it is, an argument that uses consequentialism to elevate the needs of the group above the needs of the individual.

Actually, this is a misrepresentation of what I said, namely, one right of mine trumps a different one of yours. In this particular context, my statement happens to be true, as I believe that I have demonstrated above. Also, I was speaking in the aggregate although I am to fault for not making this explicit. I thought it was obvious, but evidently I was wrong.



But this whole argument of Eric's also rests on another logical fallacy: appeal to popularity. In fact, I do not see it; I actively disagree. I think we are far safer, and individual rights are more assured, when everybody has to submit to those searches. No exceptions for Mr. Millionaire or Ms. Politician. They're going to search us anyway, legally or not, if not in this setting, then in another (From Heinlein or realpolitik: What happens if you outlaw bugs?). It is my considered opinion that we are better off if the law gives us the same right to search them and their cronies.



Me (repeat of above quote)

That it is unconstitutional under the Fourth Amendment, or as a violation of privacy, is incorrect and at best an easy excuse to harrass the government. My right not to be killed or wounded in a public conveyance trumps your right to keep explosives in your backpack, or to keep items of whatever nature private in your backpack, and one has no reasonable expectation of privacy in a public conveyance.

Eric:

And I must say that the idea that I shouldn't "harrass the government" is certainly not consistent with the founding of this country. Indeed, Dan betrays, here, a very clear "classic conservative" approach to politics. Not an ideological "neo-con" approach, but rather the way that the Tories of 18th Century England thought. This is a paternalist way of thinking, a "father knows best" sort of statement. The government knows best until they are clearly demonstrated to have done something wrong. This is 180 degrees opposite from how I think, and, indeed, how our Founding Fathers thought. I have the right, indeed the duty and and obligation, to "harrass" the government any time I think it has overstepped its limited authority granted within the Constitution. And I don't intend to stop because of the global war on terror, or whatever we're calling it today. In fact, the destruction of my freedom to behave as I please and say what I want is precisely one of the goals of our enemies. Given that, Dan, you should be supporting my harrassment of the government, not opposing it.

The relevant part of my quote being the first sentence. Actually, I didn't say that I necessarily oppose, nor do I actually oppose, harrassing the government. In this case, however, it is harrassing the government to no good purpose as they are not the proper object of your ire, which is something I do oppose. I did not, nor am I going to argue that you can't do it, but you'd be wasting tax money to no good purpose. We're all paying for this crap, every time it happens. That you have the right to bring a case does not imply that you should.



One last bit of Eric:

Finally, we come to my own consequentialist argument. Now, in my opinion, my consequentialist argument is the weakest portion of my argument, but Dan takes it as the strongest portion of the argument. This betrays a position that is founded in utilitarianism, not principle, rights of the individual and the Constitution. It is absolutely true that the random searches are completely ineffective, and should be stopped. But if they were constitutional and moral then the only argument I could make would be that they were not going to work. This, alone, might not be reason enough for me to go along with trying to stop the searches. However, when you combine the consequentialist and the moral to arrive at the same position, then you have an argument I cannot ignore. And clearly the searches are a waste of time and money, they cannot possibly work, as constituted. If I have malicious intent and I see a police officer conducting searches at the subway entrance I plan to use, I can simply turn around, walk a few blocks and enter the subway by an entrance that is not the site of an illegal search.

The part about my belief that it's the strongest argument "betrays a position founded in utilitarianism" is an ad hominem, as it implies that a position founded in utilitarianism, or that someone who espouses utilitarianism, cannot be right. This is not the case. Now, the reason I believe it is your best case is because it's your only case with a solid legal basis, as I believe that I have shown above. Yes, judges rule Fourth Amendment applies this all the time, and if the MTA doesn't appeal, the ruling stands. But my understanding is that all the standing precedents go the other way.



Now it happens that my position does flow not only from love of liberty but from utility (not utilitarianism, in the sense I belive you mean) as well. Love of liberty is not my only parameter, I admit it. Actually, I'll shout it from the rooftops if you so desire. So what? I've got kids, and nephews and friend's kids whose future I care about as deeply as my own, if not more. I want a society that works and perserveres and continues to grow, and purist positions are often not sufficiently grounded in reality to perservere. For example, the platforms of the Communist and Green and Libertarian parties. Reading L. Neil Smith makes a pleasant fantasy, but in the real world it'd last about three weeks. I am an incrementalist. I want to construct society in such a manner that it is stable in the mathematical sense, as well as tending further towards personal freedoms. Better pretty good and stable or getting better for the forseeable future than perfect for a short time and then gone. Furthermore, a lot of the libertarian positions has never really been tried, or not on the scale of the United States - there is no data as to whether it actually works. Maybe we've got a wonderful theory that doesn't work quite as we think. If the evidence says that a given idea doesn't work out as planned, I'd like the ability to change it back. Maybe we even have an idea like communism, where it isn't going to work at all if we ever get to try it. Some metaphorical prices I will not pay, and I suspect (without evidence) that most folks, and even most of those sympathetic to libertarian positions, agree with me. And for what it's worth, I think those libertarians determined to accept nothing less than a purist vision are part of the problem, not part of the solution, but instead of coercion (believe my way or else!) like the dreaded statist of libertarian lore, I believe in persuasion and rational argument to the issue and even (gasp!) agreeing to disagree.



Now, my understanding of the libertarian position says that this still makes me a libertarian if I want to be. But if we're going to get into persecutions for being imperfectly pure of belief according to the beliefs of one (or any other number of) self-appointed high priest(s), perhaps I just need to leave the church on my own, as I understand this being the United States of America, I still have that option. Your call.



UPDATE: Snippiness forgiven. Eric in comments makes a reply, so here is mine. References are to the comment.



Paragraph two: This is the definition of a straw man argument. Guilt by association.



Paragraph three: Does not matter who is conducting the searches, only who is requiring them. It is the MTA. That the NYPD is helping out is nice, and helps the searches go faster, but it is the MTA requiring them. Does not matter really matter that MTA is publicly owned, what matters is that it is an independent non-governmental body which the average citizen does have a realistic choice of not patronizing.