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Are the New Airport Searches Unconstitutional?

Episode 128: December 6, 2010
Constitutional Law

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by Adam Freedman

Today’s topic: Invasion of the body scanners--has the TSA gone too far this time?

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

The podcast edition of this article was sponsored by Go to Meeting. With this meeting service, you can hold your meetings over the Internet and give presentations, product demos and training sessions right from your PC. For a free, 45 day trial, visit GoToMeeting.com click the try it free button and enter the code podcast.

Are the New Airport Searches Unconstitutional?

Chloe writes in to ask

How can the TSA be allowed to molest people, even children, that would get normal people arrested?

I assume that Chloe is referring to the TSA’s new passenger screening policy, which includes the use of pat downs and full-body scanners that use so-called “backscatter” technology that create a three-dimensional nude picture of each passenger. Chloe’s use of the word “molest” is a little strong, but it seems to reflect the frustration among many passengers who object to the backscatter machine (which the American Civil Liberties Union described as a “virtual strip search”), and also don’t want to be “patted down” by airport officials.

In a minute, I’ll explain that pre-flight searches have generally been upheld by courts; however the new techniques being used in the US put the TSA into uncharted territory and--according to some experts--on the wrong side of the Constitution.

Why Airport Searches Are Constitutional

As I explained in an earlier article, the main legal issue with airport searches is whether they violate the Fourth Amendment to the Constitution. The Fourth Amendment forbids the state from conducting “unreasonable searches and seizures” and also requires that search warrants be supported by “probably cause.”

Why Can the TSA Do That?

Airport searches don’t require a warrant, but they do have to be “reasonable.”

Courts have held that pre-flight screening of passengers and their luggage is a form of “search and seizure.” But, as you’ve probably noticed, the TSA doesn’t present you with a search warrant before rummaging around your bags, and you’d probably get some funny looks if you demanded one. That’s because the Supreme Court has recognized a “special needs exception” to the Fourth Amendment’s warrant requirement. That exception applies to certain searches-- often referred to as administrative searches--that are not part of normal law enforcement and for which the warrant requirement isn’t practical. Airport searches fit into this category.

Courts Try to Balance Individual Privacy vs. Security

Although airport searches don’t require a warrant, they are still subject to the Fourth Amendment’s requirement that searches be “reasonable,” and this is at the root of the current controversy. The Supreme Court has yet to say what is “reasonable” for airport searches, but a number of federal appellate courts have. Generally, those courts try to balance the intrusiveness of the search versus its effectiveness in promoting the government’s interest in security. Based on those appellate decisions, the new TSA procedures could face a serious legal challenge.

Why the Airport Searches Might be Unconstitutional

In 2006, for example, the Sixth Circuit Court of Appeals held that airport searches must be “minimally intrusive” and that officials may only resort to “more invasive” methods after an initial screening has indicated some cause for concern. That standard could pose a challenge to the TSA, since their new procedures evidently call for the backscatter scanners to be used for initial screening. Following the Sixth Circuit’s logic, what would be the “more invasive” search that would follow the initial full-body scan? It’s difficult to imagine – at least in a family friendly podcast.

Another issue is whether the TSA can justify its choice of technology. In 2007, the Ninth Circuit court of appeals held that airports must use the least intrusive methods “in light of current technology, to detect the presence of weapons or explosives.” According to experts, there is less intrusive technology available. The Amsterdam airport, for example, reportedly uses a type of scanner that can give airport officials a targeted picture of potentially dangerous objects without revealing the Full Monty, as it were.

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.

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nancysbuddy
12/4/2011 9:12:34 PM

Regardless of it's effectiveness.. unconstitutional is still unconstitutional....... this country was formed to support individual liberties.... every single law passed around the world and in every country was SOMEHOW justified by their creators...
still; USA was formed to resist such intrusions.
justifying a new unconstituional law because we ignore others.. does not hold up. EVER!!!

too many idiots
3/28/2011 1:52:14 PM

..are you kidding me..? if it's unconstitutional, it's still illegal regardless of the best intentions. "The road to hell is paved with good intentions". We are constantly manipulated to surrender our rights out of fear. But nobody has legal ease to strip me of my rights, so that they may feel safer. NOBODY.!!!!
The courts stating special circumstances.. still illegal. We do not need to balance rights with security issues. It's a lie. Life implies risks.

Ed
1/30/2011 8:19:13 PM

Dear Dave,

Your logic is as fallacious as the logic you ridicule:

"IMO, this ruling is a good example of the rampant illogic that explains why the U.S. is falling behind other Nations, catering to the narcissistic foot-draggers who focus on THEIR rights, and not the greater good."

Simply put, the premise does not support the conclusion. This is little more than your opinion and not a logical or legal argument.

Dave
1/11/2011 6:38:35 PM

"In 2006, for example, the Sixth Circuit Court of Appeals held that airport searches must be “minimally intrusive” and that officials may only resort to “more invasive” methods after an initial screening has indicated some cause for concern."

This concept is worrisome to me, as it means the gov't must be restrained from using more effective methods only until AFTER the antiquated, less-effective methods have indicated a need.

Here's a thought experiment to demonstrate the fallacy:

Suppose an inventor builds a new device that is inexpensive, easy to use, and offers a 100% detection rate (0 false positives, 0 false negatives, 100% true positives and negatives). Basically, it's a magical screening device that is less expensive than the current screening technologies, BUT it is more effective than current technology in detecting contraband (even items hidden inside the body, e.g. drugs in balloons).

As the "minimally intrusive" ruling stands, the gov't would NOT be able to use this more effective technology simply because it is by definition "more invasive" (able to see inside the body) than the more-error prone, more-costly, more-time-consuming technologies.

As a doctor knows, you shouldn't use outdated 'screening technology' when other more efficient technologies are released and are readily available: failure to modify your screening approach to current disease detection methodologies means you'll soon be sitting in a chair in a court facing a malpractice suit, explaining under oath why you failed to detect that tumor... Doctors are required to use available technologies when screening patients, but not the gov't?

IMO, this ruling is a good example of the rampant illogic that explains why the U.S. is falling behind other Nations, catering to the narcissistic foot-draggers who focus on THEIR rights, and not the greater good.

Maffimuk
12/18/2010 11:22:40 PM

People like to lean on the Constitution when they have been inconvenienced in some way, like longer waiting periods at airports. But they don't object when every day 4th Amendment violations, or better yet, they've accepted them as a way of life.

For example, they don't object to eating at a diner - the governement routinely searches them for health code compliances; they'll tour the White House and not object to the search because they have accepted that the President needs to be protected; they'll voluntarily drive a car that must undergo a state inspection - a search of the vehicle's mechanics; They'll go on a cruise and willingly open their bags and empty their pockets; people will buy and sell their homes knowing full well that a member of the government will search their homes for liveability. All of these areas are done so voluntarily. Flying is no different, it's an optional form of travel. One that most can't afford, but to make their travel more timely they opt to fly, albeit reluctantly due to a search. They can take the train to Alaska to see the wildlife, or drive to Disney World in Florida and never worry about being searched.

I fly frequently and have never been frisked. I've certainly never seen children being frisked. I think people like to whip out the Constitution when they have no other recourse and simply object to a new policy that affects them in the most minor of ways. The airport lines might take 10-15 minutes of your time, but death is forever.

Jerome
12/14/2010 3:26:45 AM

Since posting this, 3 new bills have come up in the NJ legislature, which attempt to ban both the scans and the searches for airports within the state, and criminalizing TSA agents who engage in it, pitting states rights directly against federal jurisdiction:

http://www.senatenj.com/index.php/doherty/nj-legislation-bans-tsa-scanners-and-criminalizes-unreasonable-searches-and-invasive-pat-downs/

I realize there are likely 10th amendment considerations here, but since this is a topical question, would you consider addressing whether this is legal or likely to succeed?

Thank you for your hard work and the useful information in this column.

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Are the New Airport Searches Unconstitutional?

Today’s topic: Invasion of the body scanners--has the TSA gone too far this time?

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Are the New Airport Searches Unconstitutional?

Chloe writes in to ask

How can the TSA be allowed to molest people, even children, that would get normal people arrested?

In a minute, I’ll explain that pre-flight searches have generally been upheld by courts; however the new techniques being used in the US put the TSA into uncharted territory and--according to some experts--on the wrong side of the Constitution.

Why Airport Searches Are Constitutional

Why Can the TSA Do That?

Courts Try to Balance Individual Privacy vs. Security

Why the Airport Searches Might be Unconstitutional

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.

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