Constitutionality of Airport Scanners

[jks9199]

There was an interesting opinion piece in the Washington Post yesterday. Joel Rosen discussed airport searches and the US Constitution -- and made some really good points. The appellate courts have ruled that airport searches are reasonable, when the level of intrusion is slight and geared towards actually finding a threat:

Although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.' "

In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both "minimally intrusive" and "effective" - in other words, they must be "well-tailored to protect personal privacy," and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate "in invasiveness only after a lower level of screening disclose a reason to conduct a more probing search."
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For the whole article, see HERE

 

[punisher73]

Just playing devil's advocate, I have heard many people say that the airlines should be able to do so because they are a private business and you are agreeing to use their services and if you don't like it than drive.

Thoughts on that?


(the above statement is NOT my viewpoint, just stating what I have heard many other people say about this issue).

 

[Empty Hands]

Just playing devil's advocate, I have heard many people say that the airlines should be able to do so because they are a private business and you are agreeing to use their services and if you don't like it than drive.

Thoughts on that?

The airlines have no say in passenger screening procedures, the TSA is part of DHS, which is part of the Executive Branch, and thus subject to the Constitution. I'm sure the airlines would like it to be less actually, since more invasive screening loses them business.

 

[crushing]

Just playing devil's advocate, I have heard many people say that the airlines should be able to do so because they are a private business and you are agreeing to use their services and if you don't like it than drive.

Thoughts on that?


(the above statement is NOT my viewpoint, just stating what I have heard many other people say about this issue).

Are you talking about implied consent? Bascially, by purchasing the tickets you are agreeing to the terms of service which include getting scanned and/or patted down. And, if you don't like those terms, then take a train or drive.

I have heard people use that as arguement, but I don't know about the legal status of such claims.

 

[jks9199]

Just playing devil's advocate, I have heard many people say that the airlines should be able to do so because they are a private business and you are agreeing to use their services and if you don't like it than drive.

Thoughts on that?


(the above statement is NOT my viewpoint, just stating what I have heard many other people say about this issue).

And I've said a variant of it myself! I had believed that the constitutionality of the search rested on the voluntariness of the travel. You're choosing to fly, and thereby accept the search that's mandated by the feds. Kind of like the searches on certain properties... But I've since learned that several appellate decisions have instead found that the limited intrusion of the search is reasonable in light of the risks and dangers involved. A couple of the rulings are mentioned in the article.

 

[Bill Mattocks]

I think the issue is unclear. The US has upheld the notion that citizens have a legal right to travel, both in general and between states. That puts 'travel' into the bag of things which 'cannot be infringed' lightly. So the question as to the 'reasonableness' of searches at airports would seem to be a valid one.

However, the EFF sued the government a few years back over the 'right to fly' without producing photo ID and after a very long protracted legal battle, it came down to no, the government is not technically requiring photo ID to fly. WHAT? Well, supposedly (and this was before 9/11), the government's argument was that yes, you have the legal right to travel, and that includes by air. However, the government was not requiring that you provide Photo ID, because there were alternative methods by which a person can identify themselves before getting on a plane.

Now, this was an interesting argument, because the government did not identify what those 'alternative' methods were, and effectively you DID have to show photo ID before getting on a plane; but the courts went for it.

The EFF has sued again in court after 9/11, saying that NOW the government is definitely requiring photo ID, which it said it did not. Interestingly, the courts refuse to hear the case; nothing happened to the best of my knowledge.

Although the courts never ruled that US citizens have a legal right to fly, it appears that at least at one point, they did not dispute that concept in court, and even agreed with it. That is not the same as saying the right exists, however.

So I think it is a gray area.

 

[punisher73]

The airlines have no say in passenger screening procedures, the TSA is part of DHS, which is part of the Executive Branch, and thus subject to the Constitution. I'm sure the airlines would like it to be less actually, since more invasive screening loses them business.

Kudos for knowing that the screening is done by a govt agency and thus does fall under 4th amendmant issues.

But, what if it wasn't the TSA and the screeners were hired by the airports?

 

[punisher73]

Are you talking about implied consent? Bascially, by purchasing the tickets you are agreeing to the terms of service which include getting scanned and/or patted down. And, if you don't like those terms, then take a train or drive.

I have heard people use that as arguement, but I don't know about the legal status of such claims.

Yes, that is what some claim, that you are implying consent because you are choosing to use their service etc.

If you don't like that then use smaller airports that don't have as much etc. or choose to drive or go by train.

 

[punisher73]

My biggest complaint isn't the scanners that you walk through, but the patdowns they have started to conduct. It is ridiculous trying to be so PC with their "random" patdowns and then pulling in elderly people who can't even walk to make them stand there.

Or that latest I heard about the elderly guy with a bag for urine output (don't know the technical name). He warned them of the bag and they still patted him down in front of everyone and then proceeded to pop the bag and spilled urine all over the guy. As if that wasn't humiliating enough, the other screeners started to laugh at him.

At what point does common sense out weigh paranoia?

 

[jks9199]

Kudos for knowing that the screening is done by a govt agency and thus does fall under 4th amendmant issues.

But, what if it wasn't the TSA and the screeners were hired by the airports?

Which is possible and there are a couple of airports doing so. However, they still have to meet TSA's standards. It's not so much the agent doing the search that makes it a 4th Amendment issue, but whether it's a governmental search. For example, let's say that I have reliable information that evidence was left hidden on private property. I can't simply tell someone who's not a cop or government employee to go get it. That makes them an agent of the government, and the 4th Amendment is implicated. Now, if you walk up to me and present me with that evidence on your sole initiative... I can use it. You might be charged with trespass or burglary, and you would have to come to court and testify where you got it -- but I can use it. You did it on your own, not at police instigation. It's a tricky line... and seldom worth playing with. If you've got the information, get a warrant and do it the best way.

I suspect that Rosen came to the right conclusion: the courts will eventually mandate the LEAST INTRUSIVE method of scanning be used, and that there be a rational basis as you move to more intrusive methods, rather than "random" selection.

 

[Bill Mattocks]

At what point does common sense out weigh paranoia?

As long as our elected officials do NOT have to go through TSA enhanced screening (and they do not), there is NO point at which anything will change.

 

[crushing]

The airlines have no say in passenger screening procedures, the TSA is part of DHS, which is part of the Executive Branch, and thus subject to the Constitution. I'm sure the airlines would like it to be less actually, since more invasive screening loses them business.

The airports, however, apparently do have a say:

http://www.examiner.com/libertarian-in-national/florida-airport-to-opt-out-of-tsa-screening

What is not clear from the article, is if the airports that do opt-out of TSA screening must continue scanner and/or aggressive pat down procedures according to TSA guidelines.

 

[Bob Hubbard]

Shame a country like Israel has to rely on things that work rather than the theater.

Going on a strict Constitutional argument, no, it's not constitutional.

The accepted thinking behind these searches is that everyone is a suspect, everyone is guilty, and we must search millions of people by hand, individually, without any cause other than they want to fly, in order to find the 5 or so people who might want to do us harm.

Look at the 911 hijackers, who were here legally, who had proper ID, who had all the right paperwork. That's pretty much everyone flying.

Right now, if you fly and go through screening, the reason for "suspicion" is vague.
Cripples, anyone objecting, and women with big breasts are the targets of enhanced pat downs. But still knives, guns, 12" blades, etc are getting through.

Here's a good read RubinReports: Why American Airport Security Is Really So Horrendous

4th Amendment says "Unreasonable Search".
To determine unreasonable, you need to define reasonable. Who would be a reasonable person to search?

Correct me if I'm wrong here, but a cop sees 'suspicious' based on how a person is acting. Fidgeting, asking too many questions, shiftiness, and so on.

Then there is "fitting the profile". Who fits the profile of the hijacker or terrorist.

I highly doubt it's the little kid with leg braces who was forced to struggle through a metal detector without them, or the woman who had to have her labia fondled because she was wearing a pad.

So everyone goes through the metal detector. All bags are xrayed.
People who bong, get wanded.
If you need more checking, nudoscan.
Then patdown.

The odds of a passenger being a hijacker are 1:4,000,000+

Last time I was in court, my lawyer didn't go through the detector, he went around, showed ID, wasn't checked. If my lawyer is trusted enough to do that, why do US Congressmen get the ballpunch search? Does anyone think that a Senator is going to hijack a 747?

This is where we get the unreasonable searches, and why the current DHS/TSA system fails the Constitutional Challenge. It assumes all are guilty until proven otherwise, and must use maximum means from the start.