How would feel knowing that police are now capable of using the same technology used in airports to scan human bodies for weapons, ON THE STREET? The New York City Police Department has always had a big challenge on its hands dealing with guns and is now turning its attention to a system that can achieve this kind of walking gun scanning, right from a police car. You heard that right: police cars can scan people on the street for guns on their body. Their purported intent of course is to scan crowds for danger, a laudable goal that many would support in the abstract. But this particular implementation raises significant questions about the balance between security and privacy and how far we are willing to go to let one yield to the other. Not to mention the health concerns that prompt people to opt out of this type of thing in airports (this author included).
NYPD is saying that this kind of system “would only be used in ‘suspicious’ situations”, putting aside pesky questions about who decides what is “suspicious” and the natural tendency for anyone with a hammer to see the world as a bunch of nails. Let’s face it, we are living in a post-privacy world and that’s not news. What is news is that we appear to be sitting back and just letting it all happen without stopping to think of how far it will go, unregulated. Public DNA scanners seem inevitable, systems that track patterns of movement and purchases are already in place, and in the hands of a tyrannical government, there’s nothing they can’t know or see. Are you Ok with this?
Interesting questions arise in the criminal defense context. Is this a warrantless search? Are “suspicious circumstances” equivalent to the “probable cause” that our Constitutional Framers articulated to throttle the government’s intrusions, having no idea of how far those capabilities would advance in the future? What does it mean to be a “Textualist” or “Originalist” interpreter of the Constitution when there is no possibility that the Framers could envision this type of governmental intrusion? These are questions that will be answered as arrests take place and searches are litigated. Until then, make sure to wear underwear when you’re out.