Mike Cassidy is no stranger to the folks who operate the Lake Champlain ferry at Grand Isle -- he's been riding it since 1991. Every morning, he commutes from his home in Colchester to Plattsburgh, where he works as the managing attorney for Prisoner Legal Services of New York. Like thousands of other ferry riders crossing the lake, Cassidy has only one other alternative for getting to work -- driving around -- and that simply takes too long.
Two weeks ago on his trip home, Cassidy's car was pulled aside at the ferry landing for a random "security screening," something that had never happened to him before. "The guy asked me if I would mind him looking in my trunk, and I said, 'Well, actually, I would mind,'" Cassidy recalls. "He wasn't quite sure what to do next."
The crewman was polite but firm: Cassidy wouldn't be permitted to board the ferry unless he allowed his car to be searched. Cassidy could refuse and get a refund, but the crewman would still take down his license-plate number and not allow him to cross for the rest of the day. So Cassidy asked: What about tomorrow, or next week? Since the screenings are random, his vehicle might not be screened next time. But would his refusal this time automatically make him a suspect on subsequent trips? "My sense was, these were a lot of questions they hadn't really thought through," he says.
After some discussion, Cassidy relented. He popped his trunk, the crewman took a quick look inside and he was allowed to proceed. None of Cassidy's bags or other belongings were searched, though the flyer he received from Lake Champlain Transportation Company, which owns and operates the three Vermont-to-New York ferries, explains that all "persons, cargo, vehicles or carry-on baggage" are now subject to random screening.
LCT didn't implement these new security procedures by choice, nor is it the only company to do so. Beginning July 1, all commercial vessels operating on Lake Champlain are now subject to the Mari-time Transportation Security Act of 2002, a law passed in the wake of the 9/11 terrorist attacks to safeguard the nation's marine ports, harbors and waterways. The 72-page legislation requires that all the nation's ferries and other marine vessels draft security plans that meet Coast Guard approval, and screen passengers, vehicles and cargo for explosives and other weapons. The rigorousness of those screenings is determined by the "MARSEC Security Level," which is linked to the Department of Homeland Security's national threat level.
But some civil libertarians are crying foul, charging that these new "screenings" violate the constitutional protection against unreasonable search and seizure. They say these random searches only create the illusion of safety, while fostering a pervasive climate of fear and further eroding our constitutionally guaranteed right of privacy. Moreover, critics argue, allowing the searches to continue unchallenged sets a dangerous precedent for other, more invasive searches in the future.
Heather Stewart, LCT's operations manager, oversaw her company's implementation of the new federal mandates. Stewart cannot discuss the details of the new security measures or how passengers are randomly selected. She can say, however, that the searches are "not invasive," and are simply part of a greater "awareness campaign" for ferry crews. "We are trying to minimize the impact on customers and crew, and I think we've done that," Stewart says. "It's not like at the border. We're not tearing cars apart."
Stewart points out that the new law has been both costly and time-consuming for LCT, especially in Grand Isle, where the ferry operates 24 hours a day all year round. In an effort to keep the cost down, LCT decided not to hire an outside security firm, which would have raised prices and potentially alienated passengers. Instead, she says, the company conducted its own security training for all 125 employees and issued them ID badges, also required by law. Stewart won't reveal what this cost the company except to say, "We spent a boatload of desk-hours on it. But we're absorbing it."
Another Lake Champlain vessel affected by the new law is the Burlington-based Spirit of Ethan Allen. Mike Shea, who owns the 500-passenger cruise ship, says he had one employee working full-time for four months drafting a security plan, then put his entire crew through a training session created with the help of the FBI, Coast Guard, U.S. Border Patrol, Vermont State Police and Burlington Police Department. He estimates that the security plan alone cost him "between $8000 and $10,000," for which he doesn't expect to be reimbursed. "It's one of those unfunded mandates that the government issues," Shea admits. "But in this case, we're all Americans and we're joining in the protective measures that need to be in place in this country, because we all know things have changed."
Passengers boarding the Spirit of Ethan Allen may also have their bags searched. Shea emphasizes that it's not as intrusive as an airport baggage screening -- at least, not yet. "They're not screening, they're just looking," he says. "Passengers have a right to refuse, and we have a right to refuse them. It's right there in the law."
Whether you call them "searches," "screenings" or just a quick peek in your handbag or car trunk, civil libertarians are troubled by the public's growing acceptance of these random searches. They believe such Homeland Security measures are leading the nation down a perilous path. Allen Gilbert is executive director of the Ameri-can Civil Liberties Union (ACLU) of Vermont. "Why is it legal to search a car or a truck on a ferryboat when, presumably, a similar search a hundred yards before or after the ferryboat on a public highway wouldn't be legal?" he asks. "Frankly, I don't understand it."
In recent years, the U.S. Supreme Court has ruled that random traffic stops on public highways are constitutional, provided they are minimally intrusive and not based on driver profiles. A common example is a DUI roadblock, in which every driver is pulled over and briefly questioned. But police officers are not allowed to randomly stop vehicles without probable cause or a search warrant and rummage through your belongings without your consent. But the courts have yet to rule on this latest legal question: Does your vehicle, which has clearly defined privacy protections, suddenly become cargo when it boards a ferry, making it fair game for more intrusive searches?
Ferries, in particular, present a dizzying array of other legal and security dilemmas. For example, many RV drivers travel with propane tanks and other combustible materials, as do larger commercial vehicles. Yet those explosive materials are still allowed on board the ferries. Also, what happens if a ferry worker discovers firearms or other weapons during a random screening? Under the Second Amendment, Americans have a right to travel with guns, and presumably, many hunters will be making the trip between Vermont and New York this fall. Firearms-free outdoor enthusiasts may carry mace or pepper spray as a defense against bear and other wildlife.
Then there's the thorny question of what happens if a deck hand discovers illegal contraband, such as fireworks or narcotics. Aside from the legal dilemma of whether the search would hold up in court, it also poses a practical safety concern for crew members, who are neither armed nor trained police officers.
In fact, some of these questions have come up elsewhere. The nation's largest ferry system operates in Washington State on Puget Sound and surrounding waterways. With 20 ports and 29 vessels, the state-run ferry system is the third-largest in the world, carrying more than 26 million passengers each year. In 2002, state police began conducting random searches of vehicles and passengers boarding those ferries. But the searches led to an outcry from riders, state lawmakers, the media and the ACLU of Washington, and they were discontinued. Today, Washington police are using bomb-sniffing dogs to screen passengers and vehicles for firearms and explosives.
These latest maritime security measures take effect just as other modes of transportation are responding to government warnings about a possible terrorist attack this summer. During this week's Democratic National Convention in Boston, police are searching the bags of all passengers on subway trains. Although transit police say they have no plans of asking passengers to produce identification, it's unclear whether anyone will be denied access for refusing to consent to a search. And, as The New York Times reported last week, passengers boarding the Shore Line East, a Connecticut train line, now turn over their bags to be X-rayed and their tickets to be scanned for explosives residue. It's part of a month-long test by the Department of Homeland Security in response to the deadly train bombings in Madrid.
Even civil libertarians don't dispute that the federal government has an obligation to protect the nation's transportation infrastructure. There are 361 marine ports
in the United States, which handle more than 95 percent of all Ameri-can imports and exports. According to the Coast Guard, less than 2 percent of the 6 million or so containers that enter the United States each year are inspected, making them "soft" terrorist targets. Ferries in the United States transport 113 million passengers and 32 million vehicles each year, virtually none of which are searched.
But as civil libertarians also argue, the line between vigilance and paranoia has become an ever-shifting one, and relinquishing our constitutional rights with the tenuous justification that "since 9/11, things have changed" skirts the fundamental issue: Where does it end? Is a ferry any more of a potential terrorist target than, say, a bridge, tunnel, baseball stadium or shopping mall? One could easily argue that a car bomb detonated aboard a ferry would do less damage than one on Church Street in Burlington or outside of Wal-Mart. Yet no one
is suggesting that vehicles be stopped and searched as they exit I-89 at Taft Corners in Williston.
Thus far, no one has brought a legal challenge to the Maritime Transportation Security Act. The ACLU of Vermont and others say they are reviewing their options, but point out that it's unlikely they would file suit against the ferry companies -- they're simply obeying the law and doing their patriotic duty.
But for his part, Cassidy sees dubious value in these hit-or-miss searches, and not just because they're not looking in every vehicle. "I see a lot of this as just generating fear among the population, sort of like the old, 'There are communists hiding in your bathroom,'" he says, "instead of looking at what it is we're doing to create people who hate us so much."