Taking the subway?

by Eszter Hargittai on May 24, 2004

You better have a good reason.. and be able to produce identification as well. [Via IP.]



jdw 05.24.04 at 5:41 pm

‘”About a year ago they admitted they were using training based on an Israeli security model of behavioral profiling or selection which they declined to either explain or to otherwise amplify what it means,” said John Reinstein, legal director for the ACLU of Massachusetts. “We asked for the records and they said that’s no longer a public record because anything that has to do with security is no longer a public record.”‘

Well, naturally. Although I think I could pretty easily amplify what it means: don’t carry any packages, don’t wear any clothing in which you might conceal something, and don’t look nervous when the security guards slam you against a wall, demand your ID, and tell you to drop your drawers and spread ’em. The innocent have nothing to fear.


Nat Whilk 05.24.04 at 6:00 pm


Can you give examples of what you would consider to be good security measures?


jdw 05.24.04 at 6:53 pm

_Can you give examples of what you would consider to be good security measures?_

If I could, I’d have to keep them secret, no? Out of curiosity, is there anything indefensible that you won’t defend?

Security on Boston subways does not need to be tightened because there was a spectacular terrorist attack using airplanes in NY 3 years ago. Nor does security on Boston subways need to be tightened because there was an attack on Madrid light rail a few months ago. Nor, likely, does security on airplanes need to be tightened because there was an attack using airplanes in NY 3 years ago.

I’m sorry if this sound blase, but the fact that accidents happen and security forces are occasionally outsmarted does not mean that security forces need to adopt radically new procedures or that they should be granted every new power that they want. Terrorist attacks on American soil are closer to unique than they are to common. This, to me, seems pretty good evidence that we should continue to do what we’ve always done.

A corollary to this belief is that it’s stupid and wrongheaded to cry “Negligent!” on the Bush administration on the grounds that the spectacular terrorist attack on NYC happened to occur on their watch. What’s happening with security looks to me a lot like what happened when it was decided that we needed to get tough on crime: politicians and law enforcement officials were falling all over each other to be the toughest, and now there are people spending life in prison because they got caught with weed. We’re getting tough on terrorism, and now you can’t look suspicious on a subway. God knows what happens the first time someone sets a bomb off on the sidewalk.


Matt Weiner 05.24.04 at 8:07 pm

–And it is probably also possible to arrive at a middle ground between “Accidents will happen, deal with it” and “Anyone who doesn’t want to explain what they’re doing on the subway is a terrorist,” though I’m not exactly sure where the best middle ground is. Forced to make a choice I’d opt for #1.


T. Gracchus 05.24.04 at 10:03 pm

This would appear to run afoul of Kolander, which held that identification could not be required for persons walking public spaces. And if not, let’s just implant RFIDs.


Robert Lyman 05.24.04 at 10:34 pm


I have to disagree with you on the legal point here.

Kolender v. Lawson, 461 U.S. 352 forbid legislature to make not carrying identificaiton an arrestable offense. Note that the decision was make on a fairly narrow vaguness grounds: it seems as though a legislature could beat the decision by clarifying exactly what form of ID is acceptable in a way that removes most police-officer discretion. It isn’t clear that the Court would actually allow that statute, but it is certainly implied from the logic of the decision.

However, the police do not appear to be preparing to arrest people who refuse to produce ID. Rather, they are simply stopping people and asking them to chat–a practice which has always been a part of police work. Under Terry v. Ohio, 392 U.S. 1, the police can go even further than simply talking: they can physically detain you and search your body for weapons if they have “reasonable suspicion” that crime is imminent, and that you are armed. There is no chance that the Court will overrule Terry.

Since arrest for non-identification doesn’t appear to be probable, the only question is whether the likely sanction, forcible removal from the T stop, is acceptable under the Constitution; it probably is. It certainly is acceptable for airports, which are heavily regulated. It is similarly acceptable for automobiles (drivers who don’t show ID when stopped are removed from the road). Public transportation has not been as regulated as airports and driving, but that will probably change. I don’t see the Court creating a fundamental right to ride the subway without producing ID; the public-safety rationale will almost certainly win out. Then again, it’s always a little tricky to tell which way the Court will jump.

None of this is to say that this is a good idea; I don’t know if it is or not. Just that it is almost certainly legal.


billyfrombelfast 05.24.04 at 11:23 pm

They just banned photographs on our NY Subways too. All those homely midwestern tourists in dayglo parkas must fit some profile.


Lance Boyle 05.24.04 at 11:54 pm

“Security on airplanes doesn’t need to be tightened because there was an attack using airplanes in NY 3 years ago.”
So true, and well said. But when will public discourse shift away from rebutting the given arguments of corrupt sociopaths?
Why do the proffered rationales get all the ink?
Is it not at all possible that tightening security, in Boston or anywhere else, is motivated by something other than protecting a public these swinish aliens have proved irrefutably they care nothing for to begin with?


T. Gracchus 05.25.04 at 12:01 am

Beg to differ, respectfully, Mr. Lyman. In Kolander, the defendant was arrested for refusing to produce identification, not because he lacked the appropriate sort. (Can’t tell it from the Supreme Court decision, but Lawson liked to walk and simply refused to carry any identification.) If the enforcement is a “stop and identify” pedestrians, it is hard to see how that squares with Kolander. But the issue is back in front of the Court now in the Nevada case. Police are certainly free to chat, and citizens (and others) are free to not chat. (Terry stops are not involved, because there is no articulable reaosn to believe a crime has been committed.) Pedestrians need no license, hence it is an additional step to require that they carry and produce identification. Airports are not public places in the proper sense, and it is quite possible that subways will be held to be like airports.

Chips it is.


bellatrys 05.25.04 at 12:10 am

How is this going to stop people from putting bombs down on the traintracks somewhere up ahead? Wasn’t that the MO of the Madrid saboteurs?

I mean, it wouldn’t be that hard to get to the tracks, especially the elevated ones, and put something on them where it would be hard to see. A photocell for the switch instead of a timer, so that when the car goes over it it’s triggered, and you might take out not just the train but also the traffic underneath and a lot of buildings on either side.

This is one of those meaningless gestures, like the one blocking big parcels against the unibomber, that is supposed to make people “feel” more secure, while actually doing nothing or possibly reducing security…


Peter 05.25.04 at 12:21 am

Um, I actually think both the original post (with its unspoken criticism), and the responses are a bit puzzling. I would suggest a couple things, though I’d like to do with without automatically being assumed to be in favor of random invasive strip-searches by the feds.

First, why should we feel we have a right to not be searched on a subway, or an airplane? We can argue about the details (which might be the whole case here, frankly), but aren’t there any circumstances under which random security should be instigated? Or, rather, is there a base level of State power than can be exercised here > 0? If so 0 > state power > what?

Second, there is a more general argument about citizen (and non-citizen) rights to privacy and the intrusiveness of the State. I’m no libertarian, to be sure, and this may be what bugs me about Ezster’s impulse. NASA has the legitimate ability to keep you from getting on a space shuttle without ID and without extensive background checks and expertise. Let’s call that 10. The State has no legitimate ability to stop your boat in international waters to ask where you’re going. Let’s call that 0. Where are subways and other forms of public but mass transit? We regulate driver’s licenses; they are a privilege rather than a ‘right’. You ride airlines subject to the terms and conditions of your ticket.

I guess I just would rather have some (reasonable) form of security measures if they are going to make it (somewhat) less likely that I’ll get poisoned to death while riding underground to work. Why is that crazy?


Robert Lyman 05.25.04 at 12:32 am


I know that Kolender refused to produce ID, and was thus obviously in violation of the statute which required him to produce “credible and reliable” ID. But here’s the court’s penultimate sentence: “We conclude 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.” They also say “[T]his is not a case where further precision in the statutory language is either impossible or impractical.” That leaves open the possibility that the defect in the statute could be cured by careful elaboration of what was required. Don’t know if the court would approve of that in practice, but they seemed to say they would. They had a perfectly good 4th Amendment rationale in Brennan’s concurrance, and they pointedly ignored it. For anyone out there who doubts me, follow the earlier link.

In addition, Kolender was arrested and convicted; that’s rather different from simple exclusion from the subway. I expect the latter to get much lighter scrutiny. I also expect subways to be treated like airports, government buildings, etc, where security will trump liberty. The Court is not going to take the blame for a rail bomb.

And Terry stops are very much involved; part of the point here is doubtless to stop and chat not just with commuters but with terrorists (and perhaps also ordinary criminals), who will most likely be armed. At least, I hope that’s the point here.


eszter 05.25.04 at 12:34 am

Peter, can you say more about why you think these measures will make subways safer for you?

As for regulating driver’s licenses, a license is required to _drive_ a vehicle, not to ride it. You can ride in a car without a license (as far as I know) and I think it’s fair that you should be licensed to drive a subway since it may require certain skills that would hopefully ensure safety of operation. But where do you draw the line between being ID’d on the subway and being ID’d on the street? Or are you suggesting that it should be perfectly okay to require IDs of everyone all the time? That is certainly not unheard of, but it’s not the way things work in the US (currently). What is acceptable form of ID? It’s a slippery slope once you start requiring IDs for everything. And then what info should be included on the IDs? Name, number, race, religion, immigration status, sexual orientation, marital status, voting record, record of incarceration? And what can that be used for? Etc, etc.


Robert Lyman 05.25.04 at 12:38 am

The State has no legitimate ability to stop your boat in international waters to ask where you’re going.

Unless you’re a pirate, in which case they get to sink you and bring the survivors ashore for hanging. Not sure where that fits in on the “liberty/security” axis.


bad Jim 05.25.04 at 4:51 am

For what it’s worth, as of about six weeks ago, the subways in Madrid were not subjecting their passengers to additional scrutiny. I observed neither checking of ID’s nor inspection of baggage.


pepi 05.25.04 at 8:50 am

I’m more or less with Peter on this. I’m in Europe, I’m used to carrying my ID card, I don’t see it as different from the driving license or passport (it works as a passport too actually) and I don’t have a problem at all with the concept of being asked to produce it from my wallet, anywhere. I’ve never needed it anywhere else than at airports or at the bank or when doing some burocratic procedure or the like, but I just cannot see ID requests as some offense to one’s liberties.

That said, I do agree with Eszter’s objection about this requirement of ID in subways – how exactly, indeed, is this going to make them safer to travel on? Didn’t the 9/11 hijackers produce some ID’s too, to buy the tickets? How is identification alone any use?

I would understand more the usefulness of applying to subways and railways the very same check-in procedures that are used in airports, to scan bags and all – that is the real thing, not just ID verification. But I guess that sort of controls would be both impractical and hugely expensive. And as has been proven, not sureproof either. So I don’t know really.


Matt Weiner 05.25.04 at 10:51 pm

ID checks may be one thing, but questioning about your activities is another. I am occasionally up to quite legal and non-threatening stuff that is none of anyone’s damn business, and the idea that I’d have to choose between explain myself to the police and walking to Cambridge from Newton Center* is absolutely horrifying.
As for Peter’s question–it’s already unlikely enough that you’ll be poisoned while going to work that these measures aren’t worth it (if they make the subway any safer). Obviously driving a car requires licensing (although the police can’t pull you over just to ask where you’re going), and airplanes are dangerous enough (also private property) that there’s some tradeoff here. But bellatrys has it right.
*It’s been a long time since I lived in Massachusetts, but I would occasionally take this ride. It’s a long walk.


Nat Whilk 05.26.04 at 12:47 am

Matt Weiner wrote:

ID checks may be one thing, but questioning about your activities is another. I am occasionally up to quite legal and non-threatening stuff that is none of anyone’s damn business, and the idea that I’d have to choose between explain myself to the police and walking to Cambridge from Newton Center* is absolutely horrifying.

Back when I was a postdoc at Georgia Tech, I was walking to my busstop in the Atlanta suburbs when a police car driving down the road beside me did a 180 and pulled up behind me. I kept walking and he flashed his lights and briefly sounded his siren so I stopped. He asked me for my ID and what I was doing there; I gave him my ID and told him I was walking to the busstop to go to work. He gave me back my ID and I was on my way. Puzzling, but not exactly horrifying. What sorts of horrifying-to-explain activities are we talking about?


Matt Weiner 05.26.04 at 1:33 am

Er, Nat, are you asking me to post on the web, where I use my real name, exactly which activities I engage in that I don’t want all and sundry to know about? Are you really asking me that? Are you joking?
Seriously, I’m not actually up to much that’s so awful–gratuitous record-shopping trips or hikes to the office to read blogs are about the size of it, sadly. But I’m sure you can think of all sorts of legal-but-embarrassing things that might come up–trips to porn emporia, or to visit illicit lovers, or boy/girlfriends that your parents don’t approve of, or maybe religious instruction that your parents don’t approve of, or trips to your psychiatrist, or to Narcotics Anonymous, or whatever.


pepi 05.26.04 at 6:51 am

Well who said you have to tell the police what you’re doing or where you’re going at all? I fail to see how that fits into ID checking. Do they have a right to do that in the US? ask and expect an answer on what you’re doing out and about at all? seriously?


Robert Lyman 05.26.04 at 7:26 am


Of course the police have the right to ask you whatever they want. You don’t have to answer if you don’t want, and they can’t arrest you solely on the basis of that refusal to answer. But most people do answer, because it’s a bit intimidating to have a cop in front of you and most people (and for that matter many cops) don’t know their rights.

The thing is, while I largely agree with Matt here, pure ID checks (even if legal, see debate about Kolender above) are not terribly useful, since it’s not like known terrorists couldn’t get fake IDs, and for that matter it’s not as if cops have managed to memorize all the names on the terrorism watch list. The whole point here is to ask people about their business and see if they react in a suspicious fashion, which would justify further attention.

This is a bizarrely effective law-enforcement technique–lots of people actually admit to doing illegal things, or give the police permission to search bags they know contain drugs or guns–but it is also raises significant privacy and liberty issues.


Troy 05.26.04 at 8:17 am

As a law-abiding citizen, I think living in a police state would be great.

oh, wait, no I don’t.

snark aside, I lived in Japan for 8 years and found the requirement to carry the registered alien card at all times to be a hassle but not such a big deal since I was in fact an alien and plenty of aliens exceed their lawful stays in the country.

But citizens within their own countries have a self-evident right to be secure in their persons and go about their lawful business without hassle from the state, and failing that I think it’s counter-productive for the state to make a big show of adding hassle into people’s lives (cf. post 9/11 airport “security”).

As a lefty libertarian I’d like to see more Flight 93 taking-care-of-ourselves rather than reliance on Big Brother to protect us from the bad guys.


pepi 05.26.04 at 11:51 am

robert lyman – it’s just that I’ve never heard of police simply asking people what they’re doing on the street at all. Unless it’s specific circumstances like drug dealing or prostitution, or even shoplifting or the like. But they’d have to have something already to go on about there. Not just stop any random person walking around.

I don’t know, it’s never happened to me or anyone I know so I’m probably ignorant on this. Maybe it’s also different from country to country, in terms of what the police can legally do.

As to the effectiveness, maybe it works like you say, but I wouldn’t have such faith in the powers of psychological intimidation with terrorists. Besides, you said it yourself, people might look nervous to the police just because of being questioned, without necessarily planning to do anything wrong.
I don’t know. ID checks I have no problem with, but it seems such a waste of time and energy to bother with questioning. They might as well do manual baggage inspections, while they’re there. At least that’d be something more useful.


Robert Lyman 05.26.04 at 12:25 pm


I think that “stop and chat” happens more than you realize (mostly in poor, high crime, minority neighborhoods), but it isn’t truly random. Cops decide they don’t like someone’s “look,” (but don’t have enough to justify a forcible stop) so they go chat. Sometimes the guy ignores them, as is his right, sometimes, for who knows what reason, he ends up confessing right there. Sometimes he does something like flee that gives more to go on. Most of the time, the guy is probably legit and the cops figure that out quickly and move on.

This is one part of what they call “community policing.”

While I agree terrorists won’t readily confess, they probably will “act funny,” a la Ressam, who was caught at the border near my hometown by a Customs agent asking the most ordinary of Canada-US crossing questions: “Where are you going? How long will you be staying?” etc.

Now, I doubt any of this is likely to actually catch a terrorist. But is it certainly legal.

Oh, and the manual baggage inspections are pretty problematic, legally, unless they ask for and get consent. Which I guarantee you they will do in cases where they are suspicious.


BadTux 05.27.04 at 2:17 am

When I was but a tadpole, my daddy told me that the difference between us and those Godless Commies over there in the Soviet Union was that we didn’t have folks on every street corner demanding, “your papers please?”. Around the same time, some dude named Khrushchev was pounding his shoe on a table and proclaiming, “We shall bury you!”.

I guess that Khrushchev was right, albeit not in the way he thought.

– BadTux the Once-Thought-I-Lived-In-A-Free-Country Penguin


pepi 05.27.04 at 1:50 pm

Robert: ok, I get it. I guess I was thinking of a distinction between what you describe, the ordinary community policing – which I considered more as all those situations where there might be already something that gives suspicion (I know, the lines can be very blurry there too) – and the truly random stopping and questioning of people just because they are taking a walk or the subway or anything.

As for baggage inspections for subways and trains passengers, is it only a matter of consent, or couldn’t it legally be working the same as in airports? Would there have to be special legislation to apply the same procedures?


Robert Lyman 05.28.04 at 3:32 pm


Don’t know if anyone’s still reading, but…

Airports (and government buildings, courthouses, etc) are considered a “special case” by the courts, where it is “reasonable,” under the 4th Amendment, to search bags and people in a way which is impossible on the street. One of the key parts of being “reasonable” is the requirement that everyone be searched, rather than just the people who “look funny.” A rule which allowed the police to search whomever they wished without consent, but not everyone, would probably not be upheld by the courts because of the potential for discriminatory enforcement. On the other hand, they might agree that subway stations are enough like airports that it would be acceptable to search everyone’s bags. I wouldn’t want to guess. But absent actual metal detectors and x-ray machines, it will be a matter of consent or a warrant (or a Terry exception, if the police think the searchee has a weapon).

Finally, I would expect the police to 1) say they were making random stops, while 2) not actually making random stops. They will try to insulate themselves from criticism (of “racial profiling,” or whatever) but probably won’t engage in the futile and time-wasting excercise of truly random ID checks.

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