Ethics @ Work: Ethnic screening?

Profiling has its uses, but requires adequate review to avoid abuses.

January 25, 2010 14:48
4 minute read.

Years ago I used to say the difference between Israel and the US was that in Israel they check your bags when you go into the store (to prevent a terrorist attack), while in America they check your bags when you go out (to prevent theft). But after the 9/11 terrorist attacks intrusive checks have become the norm in many places in the US as well.

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Still, a salient, and controversial, difference is the use of profiling. Israeli security personnel routinely concentrate their checks on suspect populations (principally Arabs), whereas in the US profiling among US citizens is not allowed.

However, the US policy is under renewed examination from both directions.

On the one hand, there is ongoing interest in profiling and a debate regarding its merits. Just a few weeks ago The Wall Street Journal featured a video story highlighting the Israeli approach and discussing its merits and demerits.

On the other hand, the US does carry out special searches for foreign visitors from 14 countries on a watch list. But even this kind of profiling has recently come under attack. Last week, a group of dozens of organizations asked the US Department of Homeland Security to cancel the policy, which they say would result in racial and ethnic profiling. The letter claims, somewhat disingenuously: "Terrorism is neither ethnically nor geographically confined."

Profiling involves taking advantage of correlations between innocent behavior and criminal acts, where there is no demonstrated cause and effect. Having a particular skin color, or a particular religion, is not illegal or antisocial and does not cause a person to commit crimes. Usually we find that only a tiny fraction of members of such groups are criminals. But at the same time we sometimes find that a very high percentage of the criminals belong to a particular group. There is a perceived security benefit to targeting enforcement efforts on that group, but is it ethical to do so?

Profiling does raise important questions of equal protection of the law. The problem is most serious regarding crimes whose exact boundary is somewhat arbitrary.

For example, everyone has to pay taxes, but different people pay different amounts. If one group is targeted for tax evasion, they may justifiably ask why they have to pay more taxes than other people. It's also forbidden to speed, but the definition of speeding varies widely. If one group is targeted for speeding, they may ask why others are allowed to drive faster than they are.

An additional problem is the investigation itself. Members of profiled groups may feel inconvenienced or even humiliated at being subjected to questioning or searches.

I believe both considerations are minimal in the case of violent crime. No one has a right to ask why they aren't allowed to harm others. Police and security personnel need to use all means at their disposal to maximize their effectiveness.

It is certainly an inconvenience and perhaps even an embarrassment to be subjected to questioning and searches, but these problems are not alleviated merely by unnecessarily subjecting more individuals to the same regime.

This could be likened to a disease that disproportionately affects a certain subpopulation. There is no guilt or shame involved in belonging to such a group, but health authorities would be well-advised to concentrate their screening efforts on the highest-risk individuals, even though screening is burdensome and even though most of the group's members feel well.

But I would add two caveats: The first is the problem of side effects. Sometimes a traveler is screened for weapons and it turns out he is carrying drugs or diamonds or something else of interest. People on the watch list would be disproportionately exposed to arrest for more minor offenses. Insofar as no targeting is involved, I don't think the problem is serious, but conceivably it would be appropriate to limit the scope of searches to the kinds of crime that in the first instance justify profiling.

The second problem is the potential for abuse. A group can be harassed or demonized by claiming that it fits a profile for some crime. Jews should be particularly sensitive to this problem, since historically we have been frequent victims of it. It is easy to concentrate lawenforcement efforts on Jews and to convict a small number who are truly guilty. This harasses Jews and also gives the impression that Jews are disproportionately criminals, when in fact their conduct is no worse than that of others.

How can we prevent abuse of profiling without eliminating the practice? It would be tempting to demand that the criteria for profiling should be transparent, but then they could be easily gamed by criminals.

I think the best solution is some kind of review process; for example, that which exists for other problematic methods of obtaining evidence, such as wiretapping. Some accountable official could be responsible for reviewing any security installation that wanted to engage in profiling. This would deter the installations where profiling is not really justified and provide review and legitimacy to those places where such a policy is truly needed to make effective use of enforcement resources.

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Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).

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