By Dr. Nii Otu Quaye
One of the biggest challenges posed all the world over in the aftermath of the September 11 attack on the World Trade center et al is which one of two competing interests ?- public safety or individual privacy-- should be prioritized over the other. Although modern technological ingenuity has developed equipment that provides near perfect security screening, obviating the flaws of the currently used machines, the privacy implications have been so unspeakably troubling that the practice all over the world seems to prioritize privacy over the public safety concerns. Specifically, the technological devices that provide near infallibility in security and screening have been used only at the pilot test stage mainly because of the overarching privacy issues exemplified by its ultra intrusiveness amounting to what some people have referred to as a ?virtual strip search?. However, it is clear that the benefits of that technology are immeasurable and, with little adaptation, can be realized without impinging on the privacy concerns.
This article addresses and recommends to our Ghanaian audience some of these adaptable ways, hoping that our government officials would give them a serious thought and possibly launch them, making Ghana the maverick in solving this all-important but otherwise elusive challenge. As noted below, although cost might initially seem daunting, not only do the benefits far outweigh the costs but, if properly handled, the technology would pay for itself and put Ghana on the global map as the maverick on this elusive issue.
The overarching puzzle in places of public accommodation, especially airports and courthouses, is how to provide the optimum safety. So far, security-screening devices of varying efficiency levels have been used, depending on the sophistication of the given facility and/or the advancement of the country in which it is located. Devices, such as the magnetometer walkthrough, x-ray machines, and hand-held scanners are very common in this regard. However, they track only metallic objects and are woefully inefficient where nonmetallic devices are implicated. The September 11 attack, the 1985 Air India bombing, and the more recently foiled shoe bomber incident, to mention but a few, highlight our vulnerability at public places in this day and age when terrorism is commonplace in the news all over the world. One expert has succinctly exemplified the gloomy picture depicting our vulnerability to the massive dangers thusly: "in this age of miniaturization, a bomb may be fashioned out of plastic and placed inside a shaving cream" and detonated by a small nonmetallic fountain pen.
To be sure, governments are neither oblivious nor insensitive to the safety challenge. Indeed, many governments, especially those in the more advanced countries, have been experimenting with security screening equipment that can track every object brought into public places, metallic and nonmetallic alike. In the United States, for instance, the government, since September 11, has invited technological experts and received numerous proposals under a program called "Code Named Dana Echo." Britain and other countries have followed suit. However, these heroic efforts have been stalled only because of the privacy issues. Introduced in Phoenix in the early 2000s as a pilot test, the Backscatter, for instance, has remained solely in that area because of intense challenges decrying its detections as "virtual strip search[es]." Likewise, because the Rapiscan 1000 can show evidence of mastectomies, colostomy appliances, catheter tubes, and the size of a person?s breast and genitals, that equipment has not been used beyond the pilot stage in Heathrow just as the Millivision 350 has been confined to its exploratory stage as it detects everything on the body, including "internal body" images.
The question, then, is how governments should handle the two competing interests: Should they continue prioritizing privacy over safety, or should the respective pros and cons of the two be balanced and harmoniously accommodated without sacrificing one for the other?
So far, the privacy concerns have taken the upper hand: privacy has been and continues to be prioritized over the safety counterpart. Nor is this surprising or far-fetched. Indeed, it is supported by, among other theories, constitutional protections against unreasonable searches and seizures and due process rights against undue governmental intrusion into areas where the individual has an expectation to privacy that society considers to be reasonable. It is, of course, axiomatic that these protections are not absolute and must yield to the government?s compelling interest in protecting the public. But it is also trite that governmental intrusion, to be valid, must be narrowly tailored commensurate to the compelling interest. An intrusion, which is not so crafted, would surely be invalidated in properly working judicial systems.
Given the enormity of the dangers posed to public places by sneaked-in weapons, there is no doubt that the introduction of the all-encompassing screening technology would meet the compelling state interest test. Specifically, the invaluable pluses of the new technology include: its ability to track metals and non-metals to optimally improve the currently used technology; its ability to work in one sweep without the need to do any follow-up secondary screening; its cost efficiency; its avoidance of any physical contact with the individual; and the fact that the 9-11 attack, the 1985 Air India bombing, and the shoe bomber incident have sounded highly eloquent notes of caution to forestall any inevitable catastrophe.
In the airport scenario, a weapon, no matter how minute, can turn an airplane into a weapon of mass destruction. While a courthouse may not have this vulnerability, given its location on land where law enforcement officers can readily suppress terroristic tendencies, there, arguably, are compelling reasons to equip them [at least, those in the more advanced countries] as well with the proposed flawless cutting edge security screening technology. Among these reasons are that most people visiting the courthouse, unlike people using the airline, either have no choice or are obligated by law to come to the courthouse, heightening the government?s obligation to ensure their safety. Even more important is the need to dispense justice without fear. A courthouse that does not provide an effective system for detecting and precluding entry of weapons, if threatened or attacked, would be impacted negatively in its dispensation of justice. More specifically, its administration of justice would be seriously compromised as judges, jurors, witnesses, and even the litigants may be swayed by the intimidation rather than the ideals of justice and the dictates of the applicable law. Needless to say, this would dampen the public?s confidence in the judiciary and usher the entire legal system into disrepute, a tendency that no well-meaning legal system would countenance.
The need to eliminate risks before they materialize thus, arguably, puts the safety interest on nearly the same, if not the same, level of importance as the privacy interest. After all, of what use is our privacy to us if we are wasted by nonmetallic devices that are sneaked in only because of our concern to prioritize privacy over safety? Here we should recognize that the proposed cutting edge technology can be invaluable as well in tracking and screening many other offensive materials, such as contraband sought to be transported through the airport.
While the compelling state interest test is thus easily met by the new technology, the narrowly tailored prong is not because its "virtual strip search" attribute is so overinclusive that it clearly constitutes "an invasion of personal rights of the first magnitude.? Indeed, as tersely rammed home in one jurist?s comments on the ?virtual strip searches? aspect, ?[p]reventing the deprivation of a plaintiff?s constitutional right to be free from unreasonable searches of this most intrusive form is of utmost importance." Emphasis is mine.
Nor is the narrowly tailored standard unmeetable. Indeed, it can be met by a carefully crafted balancing solution accommodating the competing concerns and purging the offensive excesses of the technology without unduly sacrificing the privacy interests. Specifically, the manufacturers of the cutting edge technology should be asked to reconfigure or adapt their equipment to detect metallic and nonmetallic objects without also detecting vivid body images of individuals going through them. They should be asked to reconfigure the equipment to take unisex images, masking individual attributes, such as people?s heights, faces, skin pigmentation, gender, and hair types so that officials, viewing individuals through the equipment, will not see flesh, face, or know whom they are viewing except where detection is made that a person is carrying a weapon. The manufacturers should be asked also to make their equipment take images only of parts of individuals detected to be carrying weapons. In addition, no body images should be stored in the computer, except images of those on whom weapons are detected, in which case, the images would be used solely as evidence in the event lawsuits ensue. Ghana should seriously consider the technology?s progressive prospects and take the lead in providing solution to this otherwise global safety v. privacy nightmare.
Admittedly, cost would be one big component of this initiative. However, apart from the fact that unlike many other countries, Ghana would not have to launch the new technology in several airports to make the cost unaffordable and daunting, the safety benefits would far outweigh the costs. Moreover, if properly handled without procrastination and politicization, Ghana, as the maverick can claim some co-ownership rights in the resulting product, patent it, and obtain from all countries which order it for their airports royalties that can offset the cost of launching the technology.
It is recommended that our audience ponder over the immeasurable benefits and suggest them to the relevant government officials with the hope that, if graciously and expeditiously pursued, our Dear Ghana would benefit hugely not only in the revenue derived but also in getting placed on the global map as the maverick that provided solution to this otherwise elusive global nightmare.
Email: quaye488@netzero.net
