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These Two Terrorists Walk Into An Airport...

Some drunk businessman mentions the word bomb on an aircraft, and doesn’t get away with it.

He breached the new transport safety regulations, which came into force on March 10 (if you believe the DOTARS) or possibly March 5 (if you believe the Herald) and have apparently made joking about aircraft security a punishable offense.

Here is the relevant regulation, courtesy of the DOTARS website:

1. A person must not engage in conduct that a reasonable person could interpret as:
2. a threat to commit an act of unlawful interference with aviation; or
3. a statement that such an act has been committed. Penalty: 50 penalty units.
4. For the purposes of subregulation (1) it does not matter that the conduct:
5. was engaged in in jest; or
6. was expressed to be a jest.

To me (and of course IANAL) there is a contradiction here. Clause 1 defines a penalty for a comment made that a reasonable person determines to be a threat. Clause 2 says that the comment may be made in jest. But surely if it was made in jest then the reasonable person would have not determined it to be a threat in the first place? In general I would say a comment can either be a threat or a jest but not both. [Update: Chris explains it in a way I can understand, see comments.]

The Feds don’t see it that way:

While it might be the Australian way to make light of serious topics, comments such as “never mind the bomb in my bag” is not funny in today’s high security environment at Australian airports Aviation security is a serious matter and airline and airport operators are obliged to take all threats seriously.

They seem to be saying that some comments are not funny, therefore they are threats. By this logic the RSPCA should be investigating anyone who tells the “my dog has no nose” joke.

In practice I suspect these regulations mean a set of words like “bomb”,”knife”, “jihad” and possibly “Havana” which Must Not Be Spoken regardless of intent. The Australian Services Union spokesperson quoted in the Herald article claims it is not for airport staff “to determine whether you are a terrorist or not” and hence they have to act on everything which might be a threat, whether this is an interpretation that the hypothetical reasonable person might make or not.

So once you throw away the ability of flight crew to make a reasonable interpretation of passenger comments, and reduce them to keyword-matching drones, all kinds of unintended consequences become possible. I’m not so concerned with reducing the incidence of Inspector Clouseau impressions (on the contrary…), but inappropriate actions based on legitimate comments are certainly possible.

If mentioning the word “bomb” is enough to be considered a threat, are passengers going to be inflicted with 50 penalty units for asking questions like “was the flight delayed due to a bomb scare?” or making factual comments like “the security staff found a knife on that passenger”.

Also, if you can’t trust your flight crew to accurately distinguish between threat and jest, how are you going to trust them to do the right thing in a real emergency?

Is this all making us safer? Of course it is, I’m just joking.

In my reading of it, there is actually no contradiction. If you joke about having a bomb in your bag, and the official you are speaking to recognises it as a joke, you have still breached clause 1 if “a reasonable person” (not “the reasonable person you are speaking to”) could interpret it as a threat.

The contradiction only exists if you assume that a defining characteristic of a reasonable person is that they recognise your joke as such. Given how poorly humour often translates across languages and cultures I would imagine that for many, many jokes (especially those based on irony, which would be quite a common category in the context) it would be easy to find a reasonable person who wouldn’t realise you were joking.

Hmm, well it’s not very clear but after re-reading it I guess clause 2 goes to the intent of the person making the comment. Clause 1 goes to the way that the hypothetical reasonable person interprets the comment and the interpretation of the person to whom comment was directed is irrelevant, at least as stated here. Which is fair enough I suppose.

Repugnant as it is, clause 2 is an essential part of providing of security for air travel. If jokes are allowed, they will escalate over time to the point where it is difficult to determine what is a joke and what isn’t.

For example, Is it a joke to say “please don’t make me take off my shoes, they’re full of dynamite”? If so, is it a joke to put a “Danger: TNT” sticker on the sole of your shoe? And given that, is it a joke to smear a nitro glycerine tablet across your shoes for the exthe sole of your shoe where the explosives detector will find it? I can see it quickly getting to the point where individuals can cause major disruptions but are not able to be prosecuted for it.

A few more precedents like that, and two very bad things follow: first, security staff are going to be thinking twice before following up on minor evidence of terrorist threat. Second, an effective - and low-risk - way to shut down aviation across the country would be to organise one person in each Australian city to walk into their local airport wearing an “ONLY JOKING” sign and shouting, “I’ve put a bomb on three Qantas planes and one Virgin Blue plane. Or maybe two. And the control tower. Have a nice day!”

Alan, this sounds like the slippery slope argument.

I’m not going to defend those who shout “Fire!” in a crowded theatre, but I would ask if we are making the right trade-off here for securing ourselves against people who intend to do real harm.

I have some hypotheticals for you. A terrorist boards a plane and tells one of the flight stewards “I have a bomb on board”. The steward replies “Oh ha ha very funny sir, now if you’ll please take your seat”.

So what then? Surely the terrorist would just get more angry and repeat the threat? How much security have we lost by the steward reacting this way instead of taking him seriously the first time?

Another hypothetical. A guy walks into an airport wearing a t-shirt that says “I am not carrying a bomb”. And he isn’t. Is a reasonable person to infer a threat against airport security? If so, why? After all, if you take the t-shirt at face value, it’s not a threat. What if it’s a t-shirt with a symbol of a bomb with a crossed circle superimposed?

Yet another hypothetical. A group of terrorists who take over planes without making any jokes about it. No wait, that’s not a hypothetical.

Don’t get me wrong, I really want our aircraft to be safe. But it seems to me to be more important to place the emphasis on trained security staff who can spot suspicious activity and behaviour, rather than relying on flight staff to play terrorism buzzword bingo, with all of the false positives that accompany that.

A guy walks into an airport wearing a t-shirt that says “I am not carrying a bomb”. And he isn’t.

A few years ago, I read a first-person account of a man who was frustrated by being treated poorly by airport security, and so wore a badge saying “Terrorist Suspect”. Hilarity ensued.

I can’t find a reference.

Julian, you’re probably thinking of John Gilmore.

Alastair: Well, yes, it is a slippery slope argument - but I think it’s valid in this case. Our legal system works on precedent, where it’s easier to justify any behaviour that is similar to one before it. If you allow a behaviour, you have to be prepared to allow similar behaviours that are not clearly different. The proper reply to a slippery slope argument is to propose a different place to draw the line. Where would you draw the line?

Hypothetical 1, the serious terrorist: I agree with you on the subject of actual security, but you are ignoring the effect that the businessman may have had on the other staff and passengers. What about the worried granny sitting on the other side of the aisle? Should she have to fly with a drunk, disturbed man who raises the subject of flaming planes falling from the skey? Should the hostess have to consult with everybody who heard the statement and attempt to determine whether or not they were worried by the statement, even if they are too scared to admit it? It’s better in this case to have a clear, unambiguous and easily enforceable regulation.

Hypothetical 2, the explicitly non-threatening T-shirt: again, I agree that this regulation doesn’t enhance actual security, but it certainly enhances perceived security.

Here is a summary of 1999 decision of the Canadian Human Rights Tribunal which highlights the importance of having clear, enforceable regulations in commercial aviation. http://www.chrc-ccdp.ca/publications/1999_lr/page2-en.asp (scroll down to the “Religion” heading) The full decision is well worth reading, too: http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=263&lg=_e&isruling=0

Al, I think you’ve correctly identified a slippery slope argument but erected something of a straw man yourself in the “terrorism buzzword bingo”—as far as I can tell, this is something you fear the application of the regulation might devolve to rather than any actual policy or practice.

The law is well used to dealing with the hypothetical reasonable person (it used to be the “reasonable man on the [Clapham omnibus/Bondi tram]” (IUTBAL)). The concept was invented precisely to avoid having to specify inflexible indicia, checklists, catchphrases etc that might be inappropriate or become obsolete or whatever, and to make sure all the circumstances are considered. It wouldn’t catch innocent phrases like “Star Wars Episode III is the bomb!” and probably not even stuff like “Was the flight delayed due to a bomb threat?” unless it was said in a really evil moustache-twirling kind of voice with dramatic pauses in the relevant places.

Subregulation (2) isn’t actually necessary to the operation of the regulation; it’s just a clarification. Subreg (1) depends on the intepretation of the reasonable listener and ignores the intention of the jokester; subreg (2) just emphasises (again) that the intention of the jokester isn’t relevant. So Al was almost right in the first place: if something is (objectively) obviously a joke, then a reasonable person can’t interpret it as a threat. But Chris is right too: there are many things that might be intended or even expressed as jokes but that a reasonable person might take as a threat (especially these days, when the reasonable person is crazy-paranoid), and then you’re in trouble.

I think the problem with the discussion is that “Never mind the bomb in my bag” just isn’t that funny – surely they could have come up with something better as an example? But they are the AFP I suppose.

Great discussion guys.

Just as an aside, it will be really interesting to see what comes out of the London bombings, specifically what didn’t work to prevent the tragedy, and what did work to mitigate its effects. The network of surveillence cameras seems to have proven their worth, at least for the latter.

Alan, Making people feel safe is obviously important, but IMO it is less important than addressing objectively the risks of terrorist attack. The trade-offs we make for percieved security should be different to the trade-offs made for actual security. If (again hypothetically) we agree that banning all jokes about terrorism in airports and aircraft does nothing to mitigate the actual risk of terrorist attack, and simply makes some people feel safer, is that the right trade-off to make? I would say not. If, on the other hand, there was a demonstrable reduction in actual risk as a result of these policies I would probably agree that it was the right trade-off. This begs the question as to which of perceived or actual risk is being reduced here?

Perceived security, by it’s nature, varies from person to person. Grounding a flight because of a thoughtless comment does not make me (for one) feel safer.

Matt, yes I admit to the strawman (in fact almost saying as much at the outset) but you haven’t refuted it.

The application of the regulations are of significant concern, and I think the drunken businessman incident has shown this. Would the reasonable man on the Wagga plane recognise this behaviour as a threat? We may never know, but I would be surprised if he would have been assessed objectively as behaving in a threatening manner. For the sake of argument, let’s assume that the behaviour wasn’t threatening, which in turn means the businessman was not in breach of the regulations (not those cited above anyway.).

So why was the plane grounded? It was grounded because someone has decided (and the ASU might be the first place to look for the decision-maker here) that the flight crew are not qualified to proxy for the hypothetical reasonable man. Then how do they know when to ground the flight? Again I don’t know but I’m at a loss to think of any other guidelines that you could give the flight crew other than keyword matching.

My main objection here is against the stated (not strawman) position that flight crew are not qualified to spot terrorists. This may be technically true (what qualification could there possibly be?), it seems to be missing the opportunity of utilising a trusted body of professional people to help spot threats before they become tragedies.

Alastair: I’m agreeing with you: taking that businessman off the flight made no difference to the actual safety of the flight.

However, the perception of safety is absolutely critical to the aviation industry. If people begin thinking about bombs on planes, tickets sales stop.

There are many similar situations in our society. For instance: would the hypothetical “reasonable person” put their child in a school that has “paedophile principal” spray-painted on the front fence? Our society places bounds on free-speech in this case, even if the perpetrator is drunk and joking.

Massed, low grade, “joking” threats would constitute an effective denial-of-service attack.