Railroading Your Rights

Like a twisted elementary school class of show-and-tell, this week the Department of Homeland Security (DHS) demonstrated its latest effort to search commuters and, they say, thwart an attack on New Jersey and New York City’s transit lines.

From July 13 to 27 the Department of Homeland Security will be forcing passengers at the Exchange Place PATH station in Jersey City to be searched using millimeter wave technology. During rush hour, passengers will be selected at random for screening; at other times all PATH riders will be screened.

Approximately 15,000 people use the Exchange Place PATH station daily.

Passengers will either walk through an open area lined with sensors or stand in what looks like a glass elevator. An image of the person is generated on a computer screen and is supposed to detect large objects hidden under the person’s clothing. The screening should take no more than a couple minutes, DHS officials said.

This is the second phase of a congressionally mandated program called the Rail Security Pilot Project; its results will be reported to Congress in the fall. The federal price tag is $10 million.

“The technology we’re testing today is designed to look for larger objects like a suicide belt vest and not smaller objects,” DHS spokesman Christopher Kelly told City Belt. “It’s calibrated to look for bigger things.”

Kelly said that the images generated also “protect one’s individual privacy.”

“There’s no way you can see any kind of body part,” said Kelly. “You can’t see any underwear. It’s designed to look at big bulky objects that may not typically be there. This is really just designed to check on explosives.”

Reporters at the DHS press briefing at Exchange Place were told not to take photos of the computer images for “security reasons.” The image generated is highly pixilated — the person’s body, or even gender, cannot be made out. If an anomaly is detected it is shown as a colored splotch.

From there, the screener, a TSA-certified contractor with at least six months of airport experience, performs a secondary screening, where the suspect will be wanded and subjected to a pat-down search, according to Kelly.

Much like the widespread NSA wiretapping program and the random searches in New York City’s subways, the new program at Exchange Place shows that the government is casting its surveillance net wider and wider.

“It always troubles us to see a trend in which citizens are encouraged to waive their constitutional rights in the course of their daily affairs,” said Scott Morgan, associate director of Flex Your Rights, a Washington, D.C. based organization opposed to unconstitutional searches.

Security vs. Civil Liberties?

The surveillance debate is often framed as civil liberties versus security, as if the two are mutually exclusive. But there are serious questions as to the effectiveness of random searches and omniscient government spying.

Since New York instituted its random search policy on the subways a year ago, there have been five arrests all unrelated to terrorism — for drug possession, disorderly conduct and other minor charges — according to the Associated Press. (July 9, 2006)

City Belt requested information from the Department of Homeland Security and the Port Authority of New York and New Jersey on how many terror suspects were apprehended, and how many people were arrested on charges unrelated to terror, since the random bag search policy was instituted last July for travelers using the Port Authority’s PATH system, the Port Authority Bus Terminal, AirTrain JFK and AirTrain Newark.

We have not yet received an answer.

“Suspicionless searches — of anyone walking by, searches with no particularized suspicion, no probable cause to suspect the individual being searched is likely to be involved in a specific crime as the 4th amendment requires — these searches are always going to have a very, very low hit rate,” said Morgan. “It’s very hard to find what you’re looking for when you don’t use any criteria to decide who to scrutinize.”

War on Terror, Meet War on Drugs

While the pilot program at Exchange Place is supposedly only looking for explosives, if “illegal drugs or drug paraphernalia are found during the screening process, a Port Authority law enforcement officer will respond,” according to informational literature published by DHS.

As Lee Tien, senior staff attorney with the Electronic Frontier Foundation, pointed out, these searches tell PATH users: “anything you carry may be used against you.”

That was certainly Larry Bailey’s fear in February when DHS tested the first phase of the Rail Security Pilot Program at Exchange Place. Commuters were asked to go through screening devices similar to those found at airports.

Bailey was carrying a small bag of marijuana. Bailey, a comedian and blogger now living in Long Island, refused to be searched and left the station.

“I really don’t think there’s anything you can do aside from completely stripping away peoples’ civil liberties and rights,” he told City Belt. “What we’re trying to do is stop up all the leaks. But one pops up somewhere else.” (For instance, there is another PATH station five blocks away.)

He added: “I’d rather take my chances than to live the way they live in Israel You have to worry about the joint you forgot about or worry about the weed that’s been in your pocket for two months. For me it’s not worth it.”

But despite the serious questions as to the effectiveness of random searches, the surveillance machine still pushes ahead. After all, DHS puts on a great show.

ELIZABETH WEILL-GREENBERG is co-publisher of City Belt, an independent, progressive magazine for NJ. She’s also editor of 10 Excellent Reasons Not to Join the Military, published in May by The New Press. She can be reached at: elizabeth@citybelt.org



Elizabeth Weill-Greenberg is a Senior Reporter for The Appeal. Based in New Jersey, she writes on prison and jail conditions, wrongful convictions, and the criminalization of disabilities. Elizabeth has also written for The Nation, New York Focus, and TruthOut. Partnering with CoLAB Arts, she has written two interview-based plays, which have been performed in the Northeast—“Life, Death, Life Again: Children Sentenced to Die in Prison”and “Banished: A Family on the Sex Offender Registry.” She worked for eight years at the Innocence Project as a case analyst where her work was instrumental in several exonerations. She is the recipient, with journalist Juan Moreno Haines, of the 2020 California Journalism Awards Print Contest. They were awarded first place for At San Quentin, Overcrowding Laid The Groundwork For An Explosive COVID-19 Outbreak, in the category: Coverage of the COVID-19 Pandemic – Fallout, weeklies, circulation 25,0001 and over.