Some airports have begun using backscatter x-ray and millimeter-wave technology scanners to look for weapons and explosive devices on passengers to stop terrorist attacks. The new devices have raised privacy concerns, fueled in no small part by this YouTube video and by the prominence given to the issue at the Drudge Report. Some readers have e-mailed me wondering whether using the new technologies violates the Fourth Amendment.
I don’t have a ton of time to blog on this because I have a few major deadlines looming, unfortunately, but the short answer is that use of the new technologies is very probably lawful. The Supreme Court hasn’t weighed in on the Fourth Amendment standards for security screening at airports, but the circuit courts are basically in accord (in result, with minor variations in rationale). On one hand, the lower courts have recognized that using technology to screen for weapons or explosive devices is a Fourth Amendment “search.” On the other hand, the courts have traditionally permitted the use of such screens for airport security as reasonable (and therefore constitutional) searches in ways that give a lot of deference to the national security interest in avoiding airplane hijackings and terrorist attacks. See, e.g., United States v. Hartwell ,436 F.3d 174 (3d Cir. 2006) (Alito, J.). The basic idea is that screening to stop a terrorist attack is an “administrative search” that is constitutional so long as it is reasonable — and that it is reasonable so long as it it is not overly invasive given the threat that it is designed to deter and stop.
The question then becomes if the new technologies are distinguishable. The argument would have to be that the new technologies are more intrusive than they need to be, and that they are therefore not constitutionally “reasonable” unlike other screening technologies. See Hartwell n.10 and surrounding text. But based on cases like Hartwell, and the fact that Al Qaeda has recently tried to used PETN on a passenger to try to blow up a passenger plane, which I believe traditional screening devices can’t detect, that strikes me as an uphill battle.
Anyway, sorry I can’t give a more detailed analysis, but that’s the basic state of the caselaw.
Anderson says:
Ain’t no right to fly.
November 15, 2010, 10:52 pmJustin says:
Ain’t no right to drive, either, but unreasonable searches and seizures are still protected on the roadways.
November 15, 2010, 10:57 pmJustin says:
Orin, could the case against clothes-penetrating x-ray scans turn on whether they cause cancer? I would think that the potential danger of the search, in terms of whether it involves cancer-stimulating radiation, should be weighed against the potential benefit, in terms of whether it has ever, even once, prevented a terrorist attack.
For more information about the potential risk of the devices, see here: http://www.npr.org/assets/news/2010/05/17/concern.pdf
Keep in mind, of course, that the whole thing is optional. You can choose an invasive frisk instead.
November 15, 2010, 11:04 pmOrin Kerr says:
Justin,
I’m not aware of the argument ever being made that a search is reasonable or not based on its possible health effects.
November 15, 2010, 11:17 pmJoseph says:
If these scanners are supposed to be reasonable because they are the least intrusive way to detect liquid explosives they are definitely unconstitutional because they do not detect what they are being used for.
http://www.americablog.com/2010/01/german-tv-highlights-failings-of-body.html
November 15, 2010, 11:18 pmef says:
The potential mental health concerns are another area that needs consideration. What if an individual had been the victim of sexual trauma, especially recent, and a TSA agent insists on copping a feel?
I can’t see the potential aggravating treatment being reasonable, at least for that particular set of travelers. I realize it is a small(ish) set of people, but they can’t really be separated out from the rest in any meaningful way (a doctor’s not to the TSA?).
November 15, 2010, 11:23 pmFub says:
Ain’t no right to be an airline pilot either.
But two airline pilot unions are claiming that the x-ray dose is unacceptable for them, since they are subjected more frequently, and their base exposure to x-rays is already greater than passengers because of in-flight exposure when they fly every day.
I don’t know what degree of increased x-ray exposure would make the administrative search unreasonable. Or maybe there is none.
So far the airline pilots unions are just recommending that pilots opt out of the scans and take DHS’s full grope alternative.
November 15, 2010, 11:24 pmef says:
The pilot searches are ridiculous period. They have the keys to the plane and can carry pistols. What are the TSA trying to prevent them from doing exactly?
November 15, 2010, 11:31 pmOrin Kerr says:
If these scanners are supposed to be reasonable because they are the least intrusive way to detect liquid explosives they are definitely unconstitutional because they do not detect what they are being used for.
The Fourth Amendment does not require least intrusive means. It only requires reasonableness. Of course, if you have bright ideas for how the TSA can detect explosives more easily, I hope you will share them with us and the TSA rather than keep your ideas to yourself.
November 15, 2010, 11:32 pmThe End says:
I think if any court applied the strip search line of cases which have generally found them to be unreasonable when applied to those arrested for minor violations or without some sort of reasonable suspicion that drugs or weapons are being hidden then the court would have to hold that the naked body scanners are unreasonable. But an in-person strip search where a very large man makes you bend over and “spread em” isn’t exactly the same as having an unknown man in some back room look at a black and white image of you for a few seconds on a monitor.
Over the years the Circuit Courts and the Supreme Court have been very deferential to the government on 4th Amendment cases. Other than Gant most have gone for the government. I think they will ultimately uphold the practice.
November 15, 2010, 11:33 pmDavid Schwartz says:
ef: How many pilots willing to commit suicide do you think Al Qaeda can recruit? On the other hand, one single pilot not willing to commit suicide could hand explosives or weapons to dozens of unskilled operatives before leaving the country. They could distribute the devices through airports around the country and strike a dozen planes at the same time.
November 15, 2010, 11:33 pmOrin Kerr says:
If you want to talk about mental trauma, isn’t it more traumatic when the police break down your door, handcuff you, and rifle through all your stuff? I would think that’s a lot more traumatic than a screening at an airport.
November 15, 2010, 11:34 pmWarren Crocker Herrick says:
Nobody is forcing anyone to fly. Are the searches unreasonable? Are the searches unreasonable for everyone?, or for some but not others.
November 15, 2010, 11:39 pmef says:
How many pilots willing to commit suicide do you think Al Qaeda can recruit?
What search currently employed by the TSA uncovers suicidal intent?
one single pilot not willing to commit suicide could hand explosives or weapons to dozens of unskilled operatives before leaving the country.
As long as they are checking their bags, coats and other items, the amount of explosives that could be transferred remains extremely small. Certainly not enough to arm a pair, let alone dozens of operatives. With current policy, they could hand over a pistol to someone else, but then, these new searches add no security against that.
November 15, 2010, 11:39 pmprogressoverpeace says:
This is the price we all pay for the left’s desire be holier-than-thou and refuse to allow any reasonable profiling. It would be as if a murder occurred and the police ignored the description of the perp, just stopping and questioning every single person they run into, including children, since they didn’t want to profile and possibly inconvenience those innocent people who might fall within the perp’s description. Yep. That’s what the left has forced on us and I don’t think people are going to stand for too much more of it.
We’ve got this administration that told us there was no War on Terror, going so far as to rename it that silly “Overseas Contingency Operations”, tried to bring every terrorist around to US territory in order to give them the same rights that US citizens have, Mirandized foreign terrorists in Afghanistan, and now they are saddling US with insane searches because ‘the enemy will never rest’ – the enemy of the non-war overseas contingency operations, I guess.
November 15, 2010, 11:42 pmJustin says:
http://en.wikipedia.org/wiki/Detection_dog
November 15, 2010, 11:43 pmJohn Burgess says:
@Joseph: No, the scans do not pick up liquids or plastic explosives. They do, however, pick up containers thereof, wires, and batteries. A scan showing wires and batteries is going to attract as much attention as though the bearer were wearing a sign.
And didn’t that NPR story provide a chart showing that air crews automatically receive 1K X the radiation of a scan every time they do their jobs? A possible 0.001% increase in mortality doesn’t sway me a whole lot.
@ef: PA-103 was brought down by <4.0 oz. of explosive.
@Progressoverpeace: Which profile fits John Lindh or David Hicks?
November 15, 2010, 11:43 pmOrin Kerr says:
Isn’t the problem identifying who is a pilot, as well as the administrability of the rule saying that certain or all airline employees don’t need to be searched?
November 15, 2010, 11:45 pmef says:
To someone that suffers PTSD as a result of the trauma? Probably not.
Still, one (usually) requires a warrant providing at least some protection that those undeserving of the search are not subjected to it. The other, is required if you choose to travel by air, essentially eliminating a means of legal travel from those that are victims of some other abuse.
I’m not sure it’s a great comparison.
November 15, 2010, 11:45 pmRicardo says:
I have nothing to add on the legal question. On the practical question, though, my understanding is that you have to take literally everything out of your pockets before going through one of these scanners. It also seems to be the case that theft at security screening points is a problem both in the U.S. and abroad (sometimes it is even initiated by screeners themselves as in a case in Newark where TSA agents were caught red-handed stealing from Indian nationals).
If you are flying internationally, this means you take out your wallet, cash, credit cards and passport and let them out of your sight while passing through one of these machines whereas with a metal detector, none of these are an issue. This is a thief’s dream come true and it also violates International Travel 101: never let any of these things out of your sight for a single moment.
And, no, TSA doesn’t seem to care that much if you are a victim of theft at a security screening point.
November 15, 2010, 11:45 pmJustin says:
I know I’d rather spend a few seconds petting a dog than either having my naked body peered at or having myself groped.
http://en.wikipedia.org/wiki/Detection_dog
November 15, 2010, 11:46 pmef says:
I’m not sure how that’s done… I remember Leonardo DeCaprio beat the system. I have seen video of TSA agents walking past security with back packs. An impostor (or radicalized) TSA agent seems the more immediate threat. Insisting that pilots be checked while TSA agents are waved past is, to say the least, inconsistent.
November 15, 2010, 11:49 pmFub says:
I think health effects were argued in Winston v. Lee, 470 U. S. 753 (1985), and even in Schmerber v. California, 384 U. S. 757 (1966).
In Schmerber the health claims were very weak, although in Lee they were stronger.
But the decision in Lee was ultimately based on the Schmerber tests of “dignitary interests in personal privacy and bodily integrity”.
[Preview doesn't seem to be working here, so I'm posting this blind.]
November 15, 2010, 11:57 pmDan Lavatan says:
This brings up the better question, which is if the radiation is prohibited under the 9th amendmentas cruel and unusual punishment. I know some people who worked on the sfotware for the machines and I can tell you in about 10 years a lot of TSA employees are going to start dropping like flies. Maybe in 50 years the government will apoligize just like it did with the Syphilis infections…
Another question is if having your balls groped is reasonable. Only a fool would go through the scanner.
November 15, 2010, 11:58 pmPatHMV says:
Justin has framed the basic issue correctly, I think. The government can condition some privileges on an individual’s consent to searches which would violate the 4th Amendment in any other context, but what precisely are those privileges?
I’m certainly no expert, but the jurisprudence in this area would seem to me to be a pretty mixed bag. On the one hand, we seem able to condition the privilege of being issued a driver’s license on consenting ahead of time to provide blood or alcohol samples when demanded by the police (such that refusal to comply with the officer’s request can itself be penalized). On the other hand, searches of vehicles themselves are given substantially more protection (though less than a home), with searches generally being allowed only under similar rules as searches of an arrested person.
On the third hand, the jurisprudence has treated airports very nearly akin to its treatment of border crossings: anything goes.
I despise these new procedures, and was not terribly fond of the previous procedures. I’d rather take my chances, knowing that post-9/11, passengers will not tolerate a hijacking, and will keep a watchful eye on anybody behaving suspiciously.
Unfortunately, however, I’m not sure where one could draw a principled Constitutional line which would allow the government to require metal detectors, shoe removal, x-rays of suitcases, but not allow x-rays of persons or intimate pat-downs.
November 15, 2010, 11:58 pmDan Lavatan says:
You have a soverign right to travel, which is protected among other things by the P&I clause for 14th amendment citizens. I’ve never heard a court argue people don’t have a right to fly, they typically just argue that airport security doesn’t violate that right.
November 16, 2010, 12:03 amAnon says:
Perhaps, but as I understand it, airport employees (i.e., those who work at newsstands and restaurants) are not searched, while airline employees are. This seems especially absurd.
November 16, 2010, 12:05 amDaveM says:
I know this sounds hopelessly naive, but if the 4th Amendment cannot prevent the government from forcing me to submit to the electronic equivalent of a strip search or undergo an alternative genital pat-down, then what use is it to society? If they can send x-rays through my very person in the name of security, how far of a step is it to drive by my house with a scanner and search for contraband? If they can physically touch my genitals, how far a step to require that I give a blood sample?
To top it off, it appears that once a person has been called out for random enhanced screening, there is no way to legally refuse the screening process. One either submits to being personally invaded, or faces thousands of dollars in fines.
Words fail to describe just how odious this is. When we say “we want our country back”, this is the kind of shenanigans we’re talking about.
November 16, 2010, 12:09 amJustin says:
Here’s a suggestion: draw the line in the same way that you would for the first amendment. If your searches involve creating unwanted naked images of children to be viewed by strangers, you might not be on safe ground from a Constitutional perspective.
Usually the Government is on the other side of that type of case, but these are unusual times I suppose.
November 16, 2010, 12:11 amRicardo says:
One relevant issue is the role that informed consent plays and whether it is, in fact, informed. The TSA — perhaps justifiably — has been very quiet about what the exact security procedures are at each airport at any given time to try to catch terrorists off-guard.
At the same time, there is a federal law that subjects you to a fine of up to $10,000 if you refuse to undergo security screening once the screening process starts.
That appears to make something of a hash of the argument that people “volunteer” for the treatment they receive from TSA. The body scanners appear to be employed randomly at some airports. If Jeffrey Goldberg’s and others’ accounts are any indication, TSA may have an informal policy of manhandling those who opt for pat-downs as a way to intimidate or embarrass people who choose this option.
In short, no member of the flying public can have a reasonable idea right now of whether they will be subject to a body scan when flying and, if they refuse, what the alternative will be like. They are further threatened with a substantial civil fine if they refuse whatever unknown security procedure they are supposed to be subject to.
Hopefully, the TSA will do a better job of communicating with the public in the near future.
November 16, 2010, 12:11 amIan says:
Oren,
After an underwear bomber, it really seems like the next logical attack vector will be body cavity. Would a body cavity search be seen as reasonable?
I really hope not…
[Edited by OK]
November 16, 2010, 12:18 amOrin Kerr says:
DaveM,
In your view, what kind of screening procedures does/should the Fourth Amendment permit for airline passengers? Does it permit any screening at all, or does it give passengers a constitutional right not to be searched as a condition of getting on a plane?
November 16, 2010, 12:20 amORID says:
The real question is, do I have a first amendment right to call the TSA employee a “junk grabber” and verbally tell him what I think about where his hands are? Can I turn this into my own personal-vendetta-inspired-trash-talking game as I opt out of getting scans that are being used solely based on lobbying ties?
“Hey, TSA agent, I’m just glad your wife warmed up the area for you last night.”
Pretty soon they won’t be able to find anyone willing to work for them.
Maybe we can protest, “God hates TSA”, I’m gonna set up a website and whenever I go through airport security I’m going to take the picture of the guy who does the “advance search” on me, since they don’t have a right to privacy and post it online and write some epic about how his parents taught him that being gay was okay and that’s why he ended up working at the TSA…
You’d think because other countries don’t go through the same procedures we do that terrorists would perceive them as soft targets and blow their planes out of the sky.
Edit: Please note my intended target is not “gay people” but Phred Felps…
November 16, 2010, 12:31 amChrisIowa says:
What it amounts to is: present yourself at the airport wanting to fly, you have to do whatever it is you have to do to fly.
The broader problem is that the public continually defers to security experts every time there is an added measure required to ensure security. There is no one who says NO. So the security experts dream up new and more and more fantasmagorical security measures to impose on the public, since being challenged on their excess is unknown to them. After all, it IS for security’s sake, and no one ever challenges security experts.
So the result is more and more outlandish measures, adopted because security extremists, like extremists of all types, get more and more extreme when there is no-one to challenge them. Nuclear plants have some rods to dampen the reaction. Security experts have nothing to dampen their ideas.
Eventually there must be widespread protests and demonstrations to say “Enough” or we will find ourselves in a dictatorship of security. We may already be there.
November 16, 2010, 12:37 amjoe says:
a lot of time and effort is being wasted of full body searches of individuals with low probability of highjacking or terrorist threat. I had arrived at the airport after camping trip, having no bath/shower for three days, literally changing clothes in the security line – go through screening with no questions, looked back to see two kids ages 7-9 getting a pat down because they looked to be a serious terrorist threat.
November 16, 2010, 12:40 amRicardo says:
Some might try to get the police to arrest you for “disorderly conduct” Henry Louis Gates style. There might even be a federal statute they could threaten you with. Needless to say, this is not an advisable course of action, especially in transit airports as you would miss your flight, be far away from a source of help that could bail you out of jail and you might be forced to return to meet a court date.
November 16, 2010, 12:45 amChrisIowa says:
Who would want to pat down something that smelled like carrion?
Especially carrion carrying carry-on.
November 16, 2010, 12:54 amCornellian says:
I can’t wait to see what happens when the inevitable nude picture of some nubile, attractive, 25 year old woman escapes from one of those TSA machines onto the Internet. I think it might take something like that before Congress is willing to pay attention to how obnoxious these things are.
In the meantime, per Prof Bainbridge, if feeling up underage boys and girls is your thing, then airport security is the job for you.
November 16, 2010, 12:54 amORID says:
You’ve always had to go through cancer-causing (allegedly) backscatter machines or invasive pat-ups when you wanted to fly…
November 16, 2010, 1:02 amORID says:
I can’t wait to see what happens when the inevitable nude picture of some nubile, attractive, 25 year old woman escapes from one of those TSA machines onto the Internet. I think it might take something like that before Congress is willing to pay attention to how obnoxious these things are.
Hell, someone can just put up a picture and then pretend it leaked from a TSA machine… when we are dealing with people who read the prince, all we can do is treat them in kind…
November 16, 2010, 1:03 amChris Travers says:
Orin:
I am not sure what you are addressing.
Are you saying that as currently implemented they do not violate the 4th Amendment? If so, I agree because opt-out is an option so the search is consensual. If you consent to a search of your person, it cannot violate the 4th Amendment as far as I know, but IANAL.
But are you saying that it wouldn’t violate the 4th Amendment even if there was no opt-out? If so, I’d ask if you think there is any limit to what is reasonable as an airport search. Are body cavity searches for all travelers reasonable?
November 16, 2010, 1:15 amDaveM says:
I have no problem with non-invasive searches of my person, such as metal detectors, vapor tests, and non-genital pat-downs. I have no problem with x-rays of my belongings.
Genital searches or full-body x-rays, however, are an entirely different matter. Invasive searches should be reserved for people who have been formally charged with a crime, and should be conducted by duly authorized law enforcement agents. TSA employees are only authorized to conduct administrative searches. Genital pat-downs and full-body x-rays are not “administrative”.
November 16, 2010, 1:15 amRicardo says:
Not surprising. In another case out of Newark, a TSA employee was able to steal over $200,000 worth of electronics at a security screening station, take them home and sell them on eBay.
November 16, 2010, 1:16 amChris Travers says:
To clarify, there is an opt-out and the public controversy has been sufficient to suggest that most travellers at least who are US persons are probably reasonably aware of their rights. That suggests that not opting out is tantamount to consent in my view but I could be missing something (IANAL).
November 16, 2010, 1:19 amChris Travers says:
As a related discussion, I was talking with a local civil liberties advocate and lawyer. I suggested that protesters might go to the airport and distribute small fliers encouraging travelers to opt out. These could be given out in front of checkpoints, and the protesters could simply hand them out saying “know your rights.”
I suggested that this could be a fun test of the limits of the first amendment at airports because the argument would be that one is essentially giving folks information about their legal rights immediately prior to a search, a sort of “citizens’ Miranda warning” if you will, and thus the context would be easily differentiable from the question of religious missionaries seeking donations and converts at airports. He agreed it might be an interesting test case.
November 16, 2010, 1:22 amRicardo says:
I think he is just addressing the current reasonableness standard as well as its current status as an administrative search.
The “opt-out” means that you are instead subject to a fairly intensive pat-down search that is supposed to be similar to what cops give to criminal suspects when there is probable cause. As Jeffrey Goldberg puts it (if you are a guy), the security agent runs his hands up the insides of the person’s thighs until he reaches “resistance.”
That procedure seems to present more of a constitutional problem than a body scan.
November 16, 2010, 1:24 amGreg Conen says:
Of course, the metal detectors will also pick up wires and batteries.
And, notably, wires and (most) batteries aren’t on the TSA forbidden list, so you could potentially send them through the x-ray, and assemble the bomb later.
November 16, 2010, 1:26 amMahan Atma says:
What’s the stopping point for this logic? Suppose a terrorist successfully takes down a plane by smuggling plastic explosives in his anal cavity? Does that mean all passengers can be subject to body cavity searches?
At some point, don’t we have to admit that in order to preserve our last scrap of privacy and dignity, we have to accept some degree of risk in our lives?
November 16, 2010, 1:32 amTSAAreIdiots says:
To everyone who complaints bitterly about the irrational, invasive nature of our airport screening system, I hear you. I’m with you. The current system is a mess, and security theater rules our airports.
Nonetheless, I detect a tremendous amount of naivete regarding the law, on this comment thread. I see people making assumptions about what the criteria are that courts would use, based upon what sounds sensible to them or based upon their assumptions about what types of searchers are permitted. Those assumptions appear to have little correlation with the court cases that I have read.
I’m not a legal expert, but I’ve read a few court cases on airport screening, and overall, the general sense of them is this: the courts appear to be extremely permissive in this area. If the government says “we need to do this screening to ensure the safety of air travel”, the courts say “oh, okay then, that’s cool, airports are a special case” and defer to the government, without much (if any) scrutiny. I think your mental model should be: when it comes to airport security screening, the courts are going to allow pretty much anything, and are going to be very reluctant to step in and bar current practices for airport screening.
Now I realize you might not like it. I don’t like it. It doesn’t match my policy preferences. But the fact is, that’s how the courts seem to be interpreting the law. That’s just how it is, whether we like it or not.
So my rule of thumb might be: don’t expect the courts to strike down airport screening practices that seem stupid, ill-informed, or invasive. The practices may well be all of those things, but that doesn’t mean the courts are going to rule them unconstitutional.
In summary, Orin Kerr’s summary matches what the cases I have read; please take his summary seriously, even if you don’t like its implications. Orin is actually an expert on this subject, while I am not, so it’s a bit presumptious of me to even presume to judge his comments — but I’ve detected a dismaying number of comments which just seem to ignore what Orin said. Maybe it will help to hear it from someone who is willing to agree and say “yes, I too think current airport screening practices are ineffective, ill-considered, and un-American” — but what I’m saying is, “the courts still probably aren’t going to strike down current airport screen practices”.
November 16, 2010, 1:53 amreality check says:
Tell that to Mr. DUI checkpoint operator policeman guy.
November 16, 2010, 1:59 amGene Hoffman says:
Even an administrative search needs to be reasonable. A backscatter scan of a 13 year old girl creates an image which is per-se illegal under federal child porn statutes.
I look forward to the US Attorney defending that one.
-Gene
[OK Comments: That is incorrect. The fact that an image derives from a 13-year old does not make it child pornography. For some background on the law here, and the actual statutory definition of child pornography, see here.]
November 16, 2010, 3:58 amRicardo says:
More poor communication from TSA: this article — from just 6 days ago — says the following, “Luis Casanova, the TSA’s regional spokesman for Texas, Oklahoma and New Mexico, described [enhanced pat-down searches] – and the body scan – as a procedure of last resort.”
“Procedure of last resort”? Does that only apply to Texas, Oklahoma and New Mexico? It sounds fairly regular in some other airports.
November 16, 2010, 4:06 amSchmoe says:
In my view, the ‘porno-scans’ and ‘administrative molestations’ are neither reasonable or necessary. They offer no increase in security beyond what a conventional magnetometer and a bomb sniffing beagle could provide.
November 16, 2010, 5:22 amSkeptical says:
What a stupid way to determine reasonableness. If a terrorist sticks a bomb in her/his vaginal or anal cavity, does that make it reasonable to perform cavity searches on every passenger? And if a terrorist uses a surgical implant, is radiating every passenger with a full body x-ray suddenly reasonable?
November 16, 2010, 5:40 amrb1971 says:
Agreed that it is ridiculous as a policy matter. Over drinks this weekend while discussing the same topic I wondered how much liquid explosive could fit inside a breast implant. Presumably that would almost certainly make it through security – along with say a bra “underwire” that was really a detonator.
The fact that I can envision that scenario after a couple of beers off the cuff means that any real terrorists can come up with a much better plan, one that the TSA can’t solve but maybe real intelligence work could.
November 16, 2010, 6:08 amDaniel J. Wojcik says:
Is surgery to remove a bullet for ballistic testing allowed? (Rather than for health reasons.) (Don’t know if the cases cited above cover this…ianal and have no idea where to look up cites.)
November 16, 2010, 6:16 amRicardo says:
Has there ever been a TSA security measure enacted that was not obviously in direct response to a recent uncovered terrorist plot or foiled attempt? I can’t think of any. The latest security directive from TSA is that toner cartridges are now banned on airplanes. You can bet that if someone tries to smuggle a detonator on board in bra underwire there will be earnest and serious discussion within TSA on whether bras should be banned (or maybe require women to wear “TSA-approved bras” instead).
And isn’t it pretty much guaranteed that someone will try to hide a weapon or explosive of some kind in a body cavity within the next 2 years?
November 16, 2010, 6:21 amJoe H says:
Actually, many if not most security experts who aren’t associated with the government regard much of what the TSA does as security theater, relatively ineffective (because of Bayesian issues, amongst other points), and certainly not cost effective. Good intelligence (as in the Yemen-originated bombs, London liquids, etc.) is much more effective. Reference Bruce Schneier as one example of clear security thinking. Boarding passes are another example of security theater–at one point you could create a good UA boarding pass (the bar code, of course, had to be real, to get on a plane) in Microsoft Word. I’m working in Australia right now, which certainly has reason to have security concerns (close to Indonesia, allied with the US in Afghanistan, has suffered from events such as the Bali bombing) and you can still go through security and see someone to the gate and you don’t have to take off (non-steel capped!) shoes.
The TSA is mostly an example of bureaucratic defensiveness. You’ll be in less trouble for saying “no” or by being able to say “We tried but they (you) wouldn’t let us.”
ps, I apologize about drifting away from the legal elements (IANAL!), but my understanding is that courts typically defer to “reasonable” administrative conclusions. Also, I’m a different “Joe” than the earlier commentator.
November 16, 2010, 6:45 amJohn Burgess says:
@Ricardo: A Saudi tried to assassinate the Dept. Minister of Interior with explosives shoved up his rectum last year, or so the autopsy reports say. As the joke goes, it wrecked him, but only minorly injured the official. If that sort of thing becomes popular, then yes, as El-Al Airlines already does, other airlines and/or TSA might insist on the right to perform cavity searches. On the bright side, the US will need only one carrier, thus reducing air pollution.
November 16, 2010, 7:42 amDebrah says:
Obvious points that highlight the Twilight Zone in which we’re all forced to play a part.
Untold resources, time, inconvenience, and dialogue have gone into this issue because of the inability to state the obvious.
Someone just made me aware of this article in which a Muslim group is urging Muslim women not to allow a search below their shoulders.
How long will this charade continue?
Travelers from the same group as the perpetrators these measures are ostensibly designed to deter are going to be given a pass…..as four year-old children are given a full-body frisk?
November 16, 2010, 8:00 amMorrison says:
…and what exactly would be an “unreasonable search” at an American airport, under 4th Amendment terms ?
Seems that under TSA philosophy & consensus view here — there’s no such thing as an unreasonable airport search; apparently, the 4th Amendment is just a legal guideline… not a hard requirement nor some sort of fundamental right.
If the government has a reason {any reason}– then it’s reasonable. The 4th should be amended to reflect that now enlightened legal view (?)
Most 4A discussion here is akin to members of the Flat-Earth-Society examining the fine points of global navigation — the fundamental misconception is never noticed.
November 16, 2010, 8:13 amBrian says:
There’s a company making software that converts the images from the scanners into generic avatars rather than anatomically correct images: http://www.bloomberg.com/news/2010-09-08/airport-naked-image-scanners-in-u-s-may-get-avatars-to-increase-privacy.html
November 16, 2010, 8:32 amIf this is indeed a cheap, efficient way to protect privacy interests without impacting the search necessities of TSA, would it be reasonable to reject it? Wouldn’t it necessarily mean that TSA is being more invasive than it needs to be?
Debrah says:
The new scanning technology would seem to save time as well as make the manual searches unnecessary.
That can’t be bad for those who have a particular aversion to what they characterize as “groping”.
No doubt some airport security employees will abuse their authority as happens in all professions; however, I must say that the outcry over these security checks is a bit mind-boggling.
It will be necessary to monitor what’s done with the in-depth full-body scans afterward. There should be no shelf life for the possibility of idle and twisted employees using them for pornography material later.
There needs to be a system assuring that body scans are destroyed with an automatic deleting/erasing tool.
Protocols differ from airport to airport……from country to country.
Domestic travel is less intense and invasive, obviously, and this new scanning system could be a real time-saver if implemented properly.
For international flights, travelers are usually required to arrive about two hours before departure and go through multiple searches. Places like Russia, Turkey (Istanbul), Greece, and Italy have particularly grueling safety procedures.
Some employ a scanning system and others use the manual pat-downs. Some both.
Along with intense body scrutiny comes a thorough scanning of every piece of luggage and anything you carry.
When time is short and there are long lines to board the plane for take-off, passengers choose one line or the other for either a scan or a pat-down; however, international flights usually require both.
It will be interesting to see if this new scanning technology is adopted as a uniform measure for those who opt out of a manual search.
It’s puzzling that some are fighting the very people whose efforts are to protect travelers from a real enemy……bent on sure destruction and death.
I liken these measures to a visit to the gyno. It’s no one’s first choice to do the spread eagle in stirrups, but the alternative of foregoing physical exams can be much more detrimental to your health.
And now the genitalia area is being used by some for storing explosive devices. Hence, the new scanning technology.
To those who claim to be psychologically “traumatized” by flight security measures, I wonder how they’ll feel if it turns out their cabin companions are sporting ignited cummerbunds?
Will their delicate sensibilities matter then?
November 16, 2010, 8:52 amJustin says:
I didn’t know that DUI checkpoint stops involved full searches of your possessions, naked images created by risky x-ray machines, or if you opt-out of those: intrusive frisks that involve genitals. I didn’t know they searched your person and your possessions for liquids (alcoholic liquids, I assume).
The point is that DUI checkpoints have limits. I don’t think we’d be having this conversation with such passion if the TSA stuck to their metal detectors, or if their frisks didn’t involve getting to second and third base. If DUI checkpoints suddenly became much more intrusive and ubiquitous (which, keep in mind, would save one hell of a lot more lives than the TSA does), I would hope Americans would be expressing similar concerns.
November 16, 2010, 8:56 amEllie says:
But the Fourth Amendment requires that an administrative search be “minimally intrusive.” I don’t think the choice between a strip search or a groping qualifies. Given that, can alternate methods be considered in whether these machines are minimally intrusive? After all, the TSA could use bomb sniffing dogs, ETD, or “puffer” machines, none of which invade privacy. Of course, those don’t have the benefit of being sold by Michael Chertoff’s consulting company.
November 16, 2010, 9:15 amDuracomm says:
Orin Kerr said,
That is a stunningly ignorant statement.
In theory the police are supposed to show evidence of criminal activity and get a search warrant before they break down the door.
Orin in using that example shows that he is very happy to assume everyone at the airport is there to commit a crime and therefore they should be treated like criminals.
Orin ignores the destruction of innocents his favored policy of breaking down doors has caused. Worse Orin wants to extend this failed model to the airports.
Heckuva of job there Orin.
Kathryn Johnston Timeline
Kathryn Johnston is the innocent 92 year old woman that was gunned down in cold blood by atlanta police officers who broke down her door to gain entrance to her house. The police did handcuff her like Orin mentioned above.
We did not get to find out if she found the experience traumatic because she bled out and died while handcuffed.
This is the model Orin uses to justify the use of strip scanners at the airport.
[OK Comments: FRAUD!]
November 16, 2010, 9:20 amDavid M. Nieporent says:
I wouldn’t think so, no. Pilots already have to carry special ID. (Otherwise, how would security know to let them through in the first place, without tickets, or to let them into secure areas?)
November 16, 2010, 9:22 amRicardo says:
One metric to assess any new security procedure is whether it could foil the Bojinka plot which nearly succeeded back in 1995. The improvised explosives, according to Wikipedia and this article, consisted of two 9-volt batteries, cotton balls, nitroglycerin concealed inside contact lens solution, a modified Casio watch for a timer, and a light-bulb filament.
I think the answer here is, no, this procedure would not come close to doing the trick. The scanners apparently cannot detect liquids. Batteries? Everyone carries a laptop, cell phone, digital camera or iPod on board these days. Wires can undoubtedly be concealed in thousands of ingenious ways and innocent ways.
This leaves us with trying to detect timers and detonators. And that requires old-fashioned X-ray machines and real experts operating them.
Note that even full cavity searches could be defeated very easily: just use the drug mule method. Swallow a condom full of whatever you are trying to bring on board and then take laxatives once you are through security. Unless you give passengers full body X-rays (if push comes to shove, Customs will do this with a suspected drug mule), there’s no chance of stopping this.
November 16, 2010, 9:31 amyankev says:
But there are Supreme Court decisions that hold there is a right to travel.
November 16, 2010, 9:32 amJoe says:
No right to fly? Darn, surely some song says otherwise!
Seriously, there is a right to travel. So, any inhibition of it by the state needs to be reasonable. Probably is under current law. Weren’t there a few relevant U.S. Supreme Court rulings on airport searches in the 1980s?
November 16, 2010, 9:34 amyankev says:
If you can tell me how the X-ray machines can detect PETN and other non-metallic objects, I would be very interested to hear it. You might also explain why a highly invasive search technique is “reasonable” if it is not effective at finding the things that are being searched for. The fact that trained dogs are effective at finding drugs does not make it reasonable for the government to unleash trained bed bugs to search your home for evidence of copyright violations.
November 16, 2010, 9:41 amJeff says:
The Court has made it clear that there is no right to interstate travel by air, but the doctrine of unconstitutional conditions means that government benefits cannot be conditioned on waiving a constitutional right.
My question for the posters here is this: What is the most intrusive administrative search that a federal court has ever upheld as reasonable? It seems like there’s very little case law on administrative searches that so seriously implicate one’s intimate, bodily privacy.
November 16, 2010, 9:41 amyankev says:
Isn’t that why we require a warrant based on probable cause before the the police can break down your door, handcuff you, and rifle through all your stuff?
[OK Comments: Many different kinds of very invasive searches and seizures do not require warrants, and even home searches sometimes are permitted without warrants, such as with exigent circumstances. Arrests don't require warrants as a general matter, and they are perhaps the most traumatic of the set. In your view, are the cases permitting such warrantless searches and seizures incorrect?]
November 16, 2010, 9:44 amruuffles says:
A new poll by CBS news:
The poll did not ask about alternatives like invasive patdowns.
Also interesting
Note that support for profiling has dropped even after high-profile attempts.
Republicans are divided evenly on the profiling question.
http://www.cbsnews.com/stories/2010/11/15/politics/main7057902.shtml?tag=contentMain;contentBody
November 16, 2010, 9:44 amPersonFromPorlock says:
Look, these searches are a damned impertinence and if the Fourth Amendment permits them, then the Fourth Amendment needs to be amended. Let’s not pretend that constitutionality is the issue, the public’s detestation of the searches arises out of a far more fundamental sense of what our natural rights are.
The real problem is that the government, having been savaged (not entirely unjustly) by a great many critics for Iraq and Afghanistan, wants to avoid further taking of the war to the enemy. It’s less risky to make war on us, on the off chance that one of us will turn out to be one of them, than it is to go after them where they live and be pilloried in the press. Everyone knows the defensive game is a loser, but the actual loss doesn’t happen till the end: that’s sometime off in the future, and that’s ‘never’ in politics.
We need to be aggressive: tactics will vary, but the goal should always be that when a jihadist anywhere in the world proposes an attack on Americans, his co-religionists will immediately kick him to death and flee the body. If people are determined to be our enemies, there’s a lot to be said for Oderunt dum Metuant.
November 16, 2010, 9:46 amruuffles says:
Maybe you should take a look at the poll above. The public support for these scans is overwhelming compared to other controversial issues.
November 16, 2010, 9:50 amChrisHo says:
If we assume we have a right to fly is that right being violated if they don’t allow us to get to the plane?
November 16, 2010, 9:50 amJim M says:
Is it really unreasonable? Who has the best access to bring items onto a plane or into the terminal and leave them in strategic places for retrieval later? It seems to me that the airline employees are the biggest security risk due to the access that they do have. I think the pilots complaints about the scanner is legit. However, to say that they don’t need to be searched shows a complete lack of thought about how security holes are exploited. Plus, not all pilots have guns. Just those who have gone through a lot of security checks. I don’t have the number but I would be surprised if the number of pilots permitted to have guns exceeds 20% of all pilots.
November 16, 2010, 9:53 amyankev says:
Try it and let me know what happens. My guess is that there is a statute that prohibits interfering with a TSA employee in the performance of his duties, and while you may or may not beat the rap you will not beat the ride.
November 16, 2010, 9:54 amyankev says:
SCOTUS has said that even those religious organizations are permitted to leaflet, though they can be stopped from seeking donations.
November 16, 2010, 9:58 amMike Jesse says:
Is it constitutional? Probably, given that the standard for passing 4th amendment muster seems to be simply saying “national security” before you do it.
Frankly, citing national security to prevent a bomb on a plane is pure crap. 9/11 posed a legitimate threat to national interests due to the fact that the planes themselves were transformed into potent weapons. That won’t ever work again. Passengers would revolt if someone tried to take over the plane with an arsenal of guns, let alone a box cutter, today.
So, as has been evidenced by the more recent attempts, while hijacking a plane is essentially out of the question, blowing one up is still possible. Lets say a plane, filled to capacity, is detonated, and just for a worst case scenario, over a populated area. Hundreds would die, it would be equivalent to a small to medium sized natural disaster. Certainly a calamity of human loss. But a threat to national security? I think not. Centers of government would not be threatened, certainly not federal, though it’s conceivable that some government building, anything from a town hall to a federal court building, could happen to be in a crash site. But that would have to be almost pure accident. If terrorists can detonate an explosive in a plane at cruising altitude, and accurately aim the resulting crash pieces, we’ve got bigger problems.
So using national security concerns to justify airline screening just dosn’t pass the laugh test. To say nothing of the actual cost benefit of these searches. Frankly, we pole vaulted past the point of diminishing returns quite a while back, and are coasting on pure CYA concerns and lobbying from bureaucrats and businesses that stand to gain now.
November 16, 2010, 9:59 amMike Jesse says:
Is it constitutional? Probably, given that the standard for passing 4th amendment muster seems to be simply saying “national security” before you do it.
Frankly, citing national security to prevent a bomb on a plane is pure crap. 9/11 posed a legitimate threat to national interests due to the fact that the planes themselves were transformed into potent weapons. That won’t ever work again. Passengers would revolt if someone tried to take over the plane with an arsenal of guns, let alone a box cutter, today.
So, as has been evidenced by the more recent attempts, while hijacking a plane is essentially out of the question, blowing one up is still possible. Lets say a plane, filled to capacity, is detonated, and just for a worst case scenario, over a populated area. Hundreds would die, it would be equivalent to a small to medium sized natural disaster. Certainly a calamity of human loss. But a threat to national security? I think not. Centers of government would not be threatened, certainly not federal, though it’s conceivable that some government building, anything from a town hall to a federal court building, could happen to be in a crash site. But that would have to be almost pure accident. If terrorists can detonate an explosive in a plane at cruising altitude, and accurately aim the resulting crash pieces, we’ve got bigger problems.
So using national security concerns to justify airline screening just dosn’t pass the laugh test. To say nothing of the actual cost benefit of these searches. Frankly, we pole vaulted past the point of diminishing returns quite a while back, and are coasting on pure CYA concerns and lobbying from bureaucrats and businesses that stand to gain now.
November 16, 2010, 10:00 amjlowery says:
While it’s not exactly on point, I think Safford Unified School District v. Redding (school strip search case) is instructive as to why this might be unconstitutional. There you had a lessened expectation of privacy (school) and a strong state interest (preventing drug use), that normally lessened 4th amendment requirements a great deal, but a strip search of a young girl was nonetheless ruled unconstitutional even though a search of her backpack was perfectly fine.
The Court looked to subjective and reasonable expectations of privacy to determine constitutionality and found that it was obviously a subjective a violation of privacy – given that it caused the girl intense mental anguish – and that led to a finding of unreasonableness. The Court also found that the content of suspicion didn’t match the degree of intrusion, given that there was no specific suspicion that stuff was hidden in the girl’s underwear, and that such a “categorically extreme” search requires some specific belief that it will succeed, as opposed to a generalized statement that things can be hidden in underwear.
Obviously terrorism is a different concern than school drug use with different rules, but given the wide outcry over a) having a naked picture of you taken or b) being fondled, it seems that that this is both a subjective and objective violation of intimate privacy that could require a more specific suspicion of a person as opposed to just occurring due to a random screening because a computer popped you.
November 16, 2010, 10:02 amBob from Ohio says:
According to TSA in San Diego, its $11,000 now. They had a press conference to announce they are investigating the “touch my junk” guy.
The remedy for the TSA is not legal, its political. Politics created the monster, it will rein it in.
TSA is on the verge of creating a political firestorm. The search video of the 3 year old, the “touch my junk” video etc. They are so ham handed and lack any effective spokesperson.
I wonder if a D or R will lead the charge.
November 16, 2010, 10:04 amKatahdin says:
If you consider e.g. Bruce Schneier a security expert, I’m not sure the security experts are much in favor of what the TSA does at airports. In fact, are there any independent security types who see the wisdom of e.g. letting you take two 3 oz bottles full of liquid, plus an empty 6 oz bottle, through security, but won’t let you do the reverse?
November 16, 2010, 10:14 amanon says:
That’s the standard line, but the problem is that there’s no standard of reasonableness in this argument, nor analysis to see if these safety measures are actually effective, instead simply agreeing to anything because of fear of The Terrorists. In addition, you assume the motives of the TSA are pure; while I’m sure many agents do indeed simply want to protect passengers, as a reader of a libertarian-leaning blog I’m sure you’ve heard the argument that we should limit the capability of government to abuse its authority.
1) Standard of reasonableness: Strip searches and cavity searches would be more effective than backscatter x-ray in detecting contraband. Would you agree to those? Where do you draw the line? Backscatter x-ray is over where I’d put the line.
2) Effectiveness: What’s the total number of terrorists the TSA has caught? How many explosives have the backscatter machines found? I don’t know the actual answer, but I’d imagine that–especially given the complaints–they would trumpet the news of finding any actual explosives to every news agency in the world. They haven’t.
In general their tactics have been reactive. Richard Reid tries to ignite his shoes, and we all have to take off our shoes for the scan. Terrorists try to use liquid explosives in London, and we can’t take more than 100mL of water onto a plane. Some guy puts PETN in his drawers, and we get backscatter x-ray machines. The latest victim is toner cartridges. All of these measures could only be effective if they try the same trick twice, but there’s a near-infinite array of possible tricks. I’d also point out that none of the above attacks was successful.
3) Preventing abuse of power: The TSA doesn’t seem to have very many checks and balances, and no way for a normal citizen to combat abuse. If my name is put on the no-fly list in error, how do I go about removing it if I’m not a well-connected US Senator? What do I do if a TSA agent, through malice or sheer boredom, claims to find drugs in my bag?
We’ve heard multiple reports of airport security agents harassing their coworkers based on full-body-scan images. Do you really think these consummate professionals are behaving responsibly with respect to the public at large?
November 16, 2010, 10:15 amIt’s ok, the TSA has insisted that the machines can’t store images, so there’s that, at least. Oh, wait.
David Newton says:
Depends on the jurisdiction being talked about. In the UK there are very, very serious questions over whether these back-scatter images constitute child pornography. Even if the images themselves are not child pornography they could certainly be used by paedophiles to get a thrill. I would imagine that quite a few paedophiles have applied to the TSA for security screener jobs.
The biggest problem is the difference in searches between international and internal flights. It was internal flights which were used on 9/11 and for good reason. For consistency and safety these searches have to be used on internal flights equally as on international flights and there is the chink in the armour which might allow judicial challenges to them to succeed.
On international flights there is ample precedent that virtually any searches can be carried out and that no fourth amendment rights apply as the checks are effectively the same as at a border crossing. On internal flights the facts can be easily distinguished on that point. Whether there is a separate line of cases which abrogate fourth amendment rights at airports for internal flights as well is one question. If there is not such a line of cases then an equal protection clause challenge might be applicable but it would be tricky to come up with a line of argument about what is not being equally protected. More likely to be applicable would be a due process challenge, but it sounds like this would be tricky with current precedents as well.
November 16, 2010, 10:18 amyankev says:
Part of this is a disconnect between those — such as OK — discussing what is “reasonable” from a legal standpoint, and others (including me) who are discussing what is “reasonable” in the everyday, non-legal sense of the word. It is clear that courts are highly deferntial to the government as concerns airport searches. Whether this is sound policy or whether this is dangerous to civil liberties and perhaps even to airline safety is another discussion. Both discussions are going on here at once.
November 16, 2010, 10:18 amPaco McDooby says:
People are weak. Companies are strong. Government agencies are well insulated from people, but large companies are much better equipped to influence them.
If you don’t like the searches, don’t fly. Crush the profitability of the airlines. Make the airlines vigorously oppose the regulations.
November 16, 2010, 10:28 amPaco McDooby says:
Neither. Unlike marginal improvements in liberty, convenience, and expense, all marginal improvements in security are infinitely valuable.
November 16, 2010, 10:31 amPaco McDooby says:
Neither will. Unlike marginal improvements in liberty, convenience, or expense, marginal improvements in security are infinitely valuable. Think of the children. 9/11. Al Qaeda. Be a patriot.
November 16, 2010, 10:35 amA. Criminal says:
PersonFromPorlock: Look, these searches are a damned impertinence and if the Fourth Amendment permits them, then the Fourth Amendment needs to be amended.
The 4th clearly prohibits the crap they’re doing. So what?
There’s nothing unique about airports, and anyone walking down the sidewalk in Anytown just might be a terrorist with a bomb – or maybe even unpaid parking tickets. Rather than X-ray and search people only at airports, why not search everyone, everywhere, as often as possible? There’s no legal difference between the two situations.
[FWIW, 'preview' is not working with the 'quote' function]
November 16, 2010, 10:39 ampc says:
Orin Kerr:
The TSA had machines that detected explosives — the puffer machines — but they screwed up the specs and refused to pay for the change order that would make the machines useful in a non-lab scenario. Instead they are paying a few hundred million dollars to politically connected firms to roll out the millimeter wave and backscatter (X-ray) machines.
John Burgess:
So the TSA’s new toy will kill as many people as terrorists will? I’m actually curious how many people the TSA’s new policies will kill given that some people are choosing to no longer fly and driving is much, much more dangerous than terrorists doing something to a plane.
November 16, 2010, 10:42 amEllie says:
The body scanners do not save time–they actually take longer. Passengers still have to take off their shoes, and now also have to take off their belts and completely empty their pockets. And even if you go through the scanner you can still be subject to a patdown which includes your breasts and genitals if the scanner detects an “anomaly.” This “anomaly” is usually something like a bra strap, sanitary napkin, kleenex accidentally left in your pocket, mastectomy bra and so on….. In addition, in airports that do not yet have body scanners, if you set off the metal detector you will receive a patdown.
It is also unlikely the body scanners would have caught the “underwear bomber.” Most, if not all, security experts who do not work for the federal government (including Bruce Schneier and the head of El Al security) have stated that these scanners/gropings do not make us safer. We are thus paying over 100k per scanner, having our privacy invaded, and having our dignity compromised for something that it is ineffective. And, even if we wanted to continue this foolish policy of looking for items instead of looking for terrorists, we could do so without invading privacy. The TSA could employ bomb sniffing dogs, ETD devices, or “puffer” machines. Instead, it chose to invade our privacy and treat all passengers as if they were terrorists.
Administrative searches must be “minimally intrusive.” This is hardly minimally intrusive.
November 16, 2010, 10:43 amjsmith says:
This thread only adds to my theory that Americans are, in reality, the most prudish people on the planet. It’s really not a big deal and I’m sure the security personnel have better things to do than take an interest in the size and shape of your genitals. Facebook already contains enough pictures of ‘nubile 25 year-old women’ or teenagers or anyone else (all offered in the name of an opaque privacy policy signed up to by naive youngsters) to keep a thousand perverts busy for a thousand years. I’m pretty sure that a grainy black and white picture showing nothing much won’t interest anybody.
November 16, 2010, 10:55 amRicardo says:
“Planet” here being a relatively small set of European countries. Trust me, you are wrong on this point.
Otherwise, I think the point has already been made pretty forcefully here that these machines do not do a very good job of detecting explosives. If you want to detect detonators and timers, you need X-ray machines and metal detectors.
The best thing right now seems to be to invest in technology that will actually detect explosives. These body scanners appear to be security theater.
November 16, 2010, 11:07 amKatja says:
Orin, I see a problem when we reduce the question to whether the government can get away with intrusive measures. All that means is that they’re good at exploiting holes in the Bill of Rights. It does not say anything whether these measures actually constitute good policy or whether they conform to the spirit of the Bill of Rights (even if they don’t violate the letter).
Right now, a good argument can be made that these and other measures constitute what Bruce Schneier calls “security theater”, i.e. measures that aim largely at being visible rather than effective to reassure the general populace. This story about the security at Ben Gurion Airport in Tel Aviv certainly illustrates that alternative effective means to secure an airport and flights against terrorism exist that do not require embarrassing and inconveniencing travelers.
Obviously, the efficacy of security policy generally isn’t something for a court of law to resolve; my point is that “does not violate the letter of the Fourth Amendment” is an awfully low standard.
November 16, 2010, 11:07 ammark birch says:
Consent always implies the right to withdraw consent at any time.
http://www.signonsandiego.com/news/2010/nov/15/tsa-probe-scan-resistor/
“Aguilar said that once a passenger enters the security area, there is a legal obligation to follow through with the process.”
I would argue to the contrary. Consent to search always implies the right to withdraw that consent at any time. This has been hashed through with traffic stops already. You can give consent, then withdraw it half way through the officer’s search of your car. As long as the officer hasn’t developed probable cause already, he must stop searching, and he may not use your withdrawl of consent AS his probable cause.
Why does not the same rule follow in the case of TSA? The government’s interest in preventing “information gathering” or dry runs, would not trump the 4th ammendment. We don’t go through security, or sit on airplanes with black hoods over our heads. (yet)
It is also of dubious benefit, those who want to reconnoiter TSA security measures, could easily do so with google or by taking a few cheap flights.
The $10,000 or $11,000 civil penalty for not completing the trip through the security checkpoint is clearly unconstitutional.
One does not enter into a contract with the federal government to complete security screening upon purchase of plane ticket. There is no tort, to create one would be illegal. But apparently, that is exactly what they have done.
November 16, 2010, 11:13 amyankee says:
Just see it as a jobs program. Think of all the extra nannies, housekeepers, and chauffeurs the execs at L-3 Communications will be able to hire.
November 16, 2010, 11:26 amRicardo says:
One thing that occurs to me is that al Qaeda are essentially idiot savants — the only thing they are good at is devising new ways to kill people and get around airport security.
Otherwise, they are bumbling to the point of absurdity. Consider that one of the conspirators in the first WTC bomb plot rented the Ryder truck under his own name and tried to get back his deposit after the bombing. Ramzi Yousef in the Bojinka plot actually signed into a hotel in Manila under his own name and then went back to the check-in desk and asked for his registration form so that he could tear it up and fill out a new one with a fake name. Abdulmutallab bought a one-way ticket with cash and was reported by many people to have been acting strangely. Zacarias Moussaoui set off so many alarm bells federal authorities and the CIA were both well aware of him before 9/11. A couple of other 9/11 hijackers also raised suspicions along the way on the part of immigration authorities and airline check-in agents.
Etc. Most of these security measures are a waste of time and money. Better intelligence and security measures that focus on behavior rather than objects would be far better. Right now, TSA is full of people who would probably flunk out of police academy.
November 16, 2010, 11:36 amDennis says:
But you can’t opt out. You can choose between having two electronic perversions of nude photographs taken of you, and being sexually molested. OK, I’m exaggerating, but some folk don’t feel that is an exaggeration. When they discover the horror of what they are to be subjected to, they no longer have the option of opting out. They must be molested or face a $10,000 fine.
That’s a helluva choice.
November 16, 2010, 11:37 amjsmith says:
Admittedly, you’re right. But I hold America to a higher standard than the other countries which fear sex or revealing anything to do with sex.
I’m not convinced about the theoretical methods to catch terrorists offered by Some Guy on the Internet. I would like to think that the TSA at least has a passing knowledge of what these scanners can and can’t detect. Has anyone offered any actual scientific evidence to the contrary.
November 16, 2010, 11:41 amDon Miller says:
I have always said that the best defense to future hijackings isn’t more and more screening. It would be to put those expanding batons into every seat pocket on the airplane.
TSA screening process is the same mistake the people who designed the Maginot Line made. Every fortress can be breached. In a static defense, you have to imagine every possible attack vector and defend against every single vector. It is an impossible, infinitely expensive task. The attacker just has to invent one attack that will work and your defense crumbles.
All screening isn’t bad. Eventually though, it is over burdensome and too expensive. We passed that step long ago.
Batons may not sound like much of a weapon, and they aren’t. But our old screening process was pretty effective at screening out anything much more sophisticated. Even a handgun is ineffective when faced with 100 angry passengers armed with clubs.
November 16, 2010, 11:42 amDennis says:
It’s been done.
http://homelandsecuritynewswire.com/saudi-suicide-bomber-hid-ied-his-anal-cavity
November 16, 2010, 11:45 amChris Travers says:
I’m not 100% sure. I have been under the assumption that the pat down was similar to what they’d give folks who, say, accidently left a pocket in their pockets when going through the metal detector (yes, I’ve been patted down for that).
If it is as invasive as you say, I will volunteer myself to the ACLU as a plaintiff on this matter (I have to fly in a few months and intend to opt-out of the invasive body scan).
November 16, 2010, 11:45 amAnderson says:
Orin is actually an expert on this subject, while I am not, so it’s a bit presumptious of me to even presume to judge his comments
Expertise is anti-American. We are all created equal and have an equal ability to judge everything. Don’t confuse us with the facts, the law, or the experts.
November 16, 2010, 11:46 amDennis says:
That’s a variant of what I call the “Bucket of Knives” security system. There is a bucket of cheap knives at the entrance of the airliner. Everyone coming on board can draw a knife from the bucket. Turn it in when you debus. Use cheap knives because very soon every traveler will have stolen more of the knives than he can stand to own.
Do YOU want to try hijacking that plane?
November 16, 2010, 11:48 amUS v Aukai says:
http://volokh.com/posts/1186776585.shtml
November 16, 2010, 11:52 amRicardo says:
I’m not either. But when former CEO of El Al and former member of Israel’s Secret Service Isaac Yeffet shares a few words of wisdom, I’m inclined to listen. Bruce Schneier also keeps up to date on this stuff and has some interesting things to say.
November 16, 2010, 11:55 amDennis says:
But airport employees, people who do service work airside, are often not checked. The last time I drove my truck onto the airfield, escorted for navigation but un-searched, and then left on the apron, there was a tool box in back that could have contained the loadout for an infantry platoon. There are flight kitchens, airside, or who are permitted un-searched airside access, that have more knives than a cutlery shop, and they have high employee turnovers.
It was judged “too disruptive” to plug that hole, a hole that you literally drive your truck through.
November 16, 2010, 12:02 pmDebrah says:
Of course government should definitely not be allowed to abuse their authority, but so many choose to forget the reason these security measures were implemented in the first place.
It’s a royal pain to go through all those gyrations. Most people would prefer to not go through such inconveniences, but they are necessary.
In many respects fighting radical Islam does become a game when procedures are essentially moving targets as well as tips of strategy for the terrorists. However, relaxing such measures as some in the current administration seem to prefer is a fool’s strategy.
Many Americans are simply lazy in almost every venture they choose. If you travel, there’s inconvenience.
My personal preference would be a scanning technology so advanced and proficient that it would dwarf an MRI……through which anything stuffed inside a body orifice would be illuminated. Such a scan would be mandatory and travelers of all ages, races, ethnicities, and countries of origin would be scanned before boarding a plane……or their azzes would remain on the ground.
For the burka-bound and soft little men who think their appendages are made of gold, no one would “touch [their] junk”. They would also remain happy…..and on the ground.
Take a bus, a train, a river…..drive or walk.
There are myriad ways to rein in wayward and twisted airport security employees.
IMO, few would actually bother with “…a grainy black and white picture showing nothing much…” as stated in a previous comment.
November 16, 2010, 12:03 pmpoul says:
call it “obamavision” and “obamapat” – if it takes, this will disappear in a blink of an eye.
November 16, 2010, 12:06 pmJoe Kowalski says:
Really, I do think this is all part of Obama’s socialist gay agenda. Force a good, Godly man to have his junk fondled by another man from government run airport security, and boom, you can turn him gay….
November 16, 2010, 12:15 pmjlowery says:
Yep, the standard pat-downs are gone, at least as a substitute for the naked picture taking machines. If you opt out the new pat-downs are designed to feel up your inner legs and underwear, so much so that they ask if you want to do it in private before starting. If it wasn’t the government, it’d be a sexual assault. As is, it’s just an uncomfortable groping.
November 16, 2010, 12:16 pmSteve says:
The TSA Civil Enforcement guidelines are here http://www.tsa.gov/assets/pdf/enforcement_sanction_guidance_policy.pdf
I don’t see any grounds in there for an $11,000 fine for voluntarily leaving the inspection area, especially after that was given as an option by the screener.
November 16, 2010, 12:25 pmLaura(southernxyl) says:
Shorter jsmith:
Some people have no modesty, therefore all people should have no modesty.
November 16, 2010, 12:26 pmJoe Mama says:
Already done:
http://www.cristyli.com/wp-content/uploads/2010/05/TSA-Scanner-Images.png
November 16, 2010, 12:35 pmDan Weber says:
Who has the best access to bring items onto a plane or into the terminal and leave them in strategic places for retrieval later?
The food vendors.
9/11 posed a legitimate threat to national interests due to the fact that the planes themselves were transformed into potent weapons. That won’t ever work again. Passengers would revolt if someone tried to take over the plane with an arsenal of guns, let alone a box cutter, today.
Cockpit doors are now secured during flight. Even if every single passenger was in on the suicide mission, it’s doubtful they could gain control of the airplane.
Flying by air is already amazingly safe. For some reason Americans have decided that someone taking out one of our planes means we have lost. Why in the world we ever agreed to such a game is insanity.
But people suck as risk analysis.
(The fact that TSA has never caught a terrorist is not an argument against them. I encounter this in security a lot: “if no one is breaking in, why are we paying so much for security?” Which is especially ironic when compared with “someone broke in, it must be the fault of the security team.”)
November 16, 2010, 12:35 pmtamerlane says:
I’m surprised that I haven’t yet heard of any Section 1983 litigation being filed against the rent-a-cop rejects that TSA seems to have recruited for its airport security details. These people are obviously ill-trained and/or poorly endowed genetically to absorb what training they do have. The personal experience of friends – and a number of recent news articles – suggest that many have criminal propensities and have found an appropriate place to exercise them.
I personally have had luggage damaged and property stole during a search of my luggage. My nephew – a federal law enforcement officer – had a certificate of merit that he highly valued destroyed. Another friend had a bottle of prescription Oxycodone taken from him — It was clearly going to be taken for sale or use by the TSA officer and just as clearly the officer knew he had no right to do so. He made it clear my friend would miss his flight if he objected or threatened a response in any way. — In the last week another friend had his genitals so roughly handled that he screamed in pain. He was immediately cuffed and taken aside for an interrogation that assured he would miss his flight and an important business meeting.
Meanwhile, the Israelis have managed a far more difficult security situation for over a quarter-century without any such intrusions on the property, rights, and physical well-being of their citizens. They do this by common-sense security procedures that succesfully separate out possible risks and likely risks from the vast majority of obviously innocent travelers. We ought to sublet our security operations to them.
November 16, 2010, 12:35 pmpc says:
It would be more accurate to call it Chertoffvision, since it’s Chertoff’s company that is getting fat paychecks for lobbying for these things. Graft is a bipartisan effort.
November 16, 2010, 12:37 pmMatt says:
Seeing that you must have just arrived from another solar system, I can assure you that humans are _very_ interested in the size and shape of other humans’ genitals. You must not have heard of the TSA worker who assaulted a co-worker after that co-worker mocked his genitals while he was testing one of the scanners.
To me, however, I am less concerned with whether the TSA can be professional (I expect they can be generally professional, though I’d also expect to see some lapses, which are inevitable in managing any large organization). I am more concerned with the loss of individual control over the private sphere; even if, hypothetically, the scanner viewing booth could be staffed entirely with eunuchs, I am bothered by the mere idea of someone looking. It represents a loss of power. I don’t always mind someone looking, but giving up control is a matter of my discretion (to a doctor, girlfriend, etc.) Now it seems the only discretion left is choosing not to fly.
I just don’t think that’s the real issue, although it’s the easiest thing to complain about. The issue is the loss of control over the private sphere. The TSA assures us the viewing booths are private and data is not kept; I don’t see strong reason to disbelieve them, and in any case flaws in their procedures can be corrected. But these assurances have not quelled the controversy over the scanners.
November 16, 2010, 12:38 pmSueSimp says:
Regardless of the legality, who the heck is actually in favor of these screening procedures? I haven’t seen anyone outside of the TSA come out with a positive opinion of them.
There seems to be a widespread bipartisan consensus that we don’t want to have full body scanners, or even to take our shoes off for each security check. And yet, inexorably, security procedures continue to ramp up.
Maybe the Tea Party ought to start championing the anti-TSA cause, I bet it would increase their popularity.
November 16, 2010, 12:40 pmCan't find a good name says:
I believe that the solution to these scans and intrusive patdowns is going to be a political one, not a legal challenge. In fact, I would not be surprised if TSA is forced to back down on this system before Christmas 2010. Most Americans are willing to put up with a high level of airport security, but I think TSA has reached the point where great numbers of people are going to say they have gone too far.
November 16, 2010, 12:47 pmjsmith says:
Modesty is good when it serves a separate purpose. Modesty for modesty’s sake is, if anything, harmful.
November 16, 2010, 12:47 pmyankev says:
Yeffet also points out how offensive these scans are to Muslims — not just Islamists, but all Muslims. Which makes me wonder. We are told repeatedly that we create more terrorists if we let some preacher burn a Koran, or if we say that it’s in bad taste to put a mosque on the site of a building that was levelled on 9/11 (even though plenty of Muslims agree), or if the US does not stop Israel from allowing housing to be built Jews who own land in a part of Jerusalem that was free of Jews from the Jordanian invasion in 1948 until Israel liberated the land in a defensive war in 1967, or if we even mention terrorism or Islamism (even in separate sentences), because we create a perception that the US is at war with Islam or is hostile to Muslims. Why is the same not true if we tell Muslim women they must choose between their dignity and air travel?
November 16, 2010, 12:48 pmanonymous says:
I’ve had three lifetimes worth of radiation and will refuse to go through any scanner. I’ve had a watch stolen at security by a TSA agent who distracted me by running my bag through a second time. For the wanding, I’ve experienced the problem of having to take my eyes off of my bags.
I get flagged nearly every time- a blue-eyed middle-age Caucasian woman- except when I’m flying Biz or First Class, and am mystified as to the logic that picking my type and a few passengers “at random” does anything to prevent terrorists from boarding planes. Also, why do the expensive tix holders appear to receive far less intrusive screening?
Current screening is too expensive, intrusive, time-consuming and ineffective. We’d save money and aggravation if we required questions to be answered upon purchase of tickets and prelim background checks get done before passengers arrive (with an opt-out to accept the full search, instead) to flag the real potential offenders. Keep the metal detectors, add scent sensors, arm pilots and put a couple of marshalls on each plane. And profile like hell (call it silhouette art…)
Perhaps others wouldn’t, but I’d even be willing to put up with cams and sensors in plane bathrooms, maybe even terminal facilities, as well.
There would be less money wasted, fewer employees to weigh down internal security and gov in general, less irradiating, no hit-or-miss security lottery illogic, and any invasion of privacy has the feature of being almost optional (if one elects to forgo inflight bloody marys and not use the facilities.)
Before 9-11, TSA meant Texas Society of Architects in my world and now I’m thinking it could design a more functional, pleasing architecture of security than the clunky, poorly functioning one we’re submitting ourselves to.
November 16, 2010, 12:52 pmyankev says:
I can see the MSNBC headlines now: “McVeigh Worshipping Racist Tea Party Gun Nuts Endorse Airline Bombings.”
November 16, 2010, 12:52 pmyankev says:
I’ll bite — what separate purpose does modesty serve, other than safeguarding the individual dignity of the viewee and the viewer? While we’re add it, how do you feel about integrity for integrity’ sake?
November 16, 2010, 12:55 pmruuffles says:
Really now? Really?
November 16, 2010, 1:00 pmOrin Kerr says:
Sue Simp:
Ruuffles:
November 16, 2010, 1:02 pmChris Travers says:
Ok, thanks for the heads up. I think I’m going to do as follows:
1) Join the ACLU.
2) When I empty my pockets, place the ACLU membership card on top.
3) Ask if they can video tape it.
4) State clearly that “I know you are just doing your job to I don’t consent to this sort of search. Since you won’t let me get on board the airplane otherwise, I’ll submit to it, but as you should know, submission is not consent.”
Should I buy a “I don’t consent to searches” T-shirt from the flex your rights foundation?
November 16, 2010, 1:02 pmanonymous says:
What does that mean, ruuuffles? You think my eyes are green?
Best guess it’s about 80% of the time. Am thinking about getting different carry-on luggage.
Haven’t flown since the new patdown rules. Next week I get to try the airport lottery, run the gauntlet, and hope for no grope.
November 16, 2010, 1:05 pmpc says:
If there are any questions about whether or not this is security theater, the head of the TSA said children 12 and under are exempt from the
November 16, 2010, 1:10 pmcustodial searchesenhanced pat downs. Apparently the TSA does not believe terrorists will use children to carry out their plans.Dan Weber says:
In many respects fighting radical Islam does become a game
If this is a game, why have we set rules against us so much? Why have we decided that if the “Islamists” take down a plane, they have won and we have lost?
Paul Campon described playing a one-on-one game against LeBron James. He could win if the rules of the game were “the game never ends until I make a basket, and as soon as I make a basket I win.” For some reason, Americans not only gleefully agreed to these rules, but they actively set them up that way.
Planes didn’t drop out of the skies like random in the year 2000. That level of security left people amazingly safe as they flew about the country. Maybe someone can take down a plane, but it will still be amazingly safe. As citizens, we will need to stop blaming the government if a plane does go down.
As a nation, we will need to stop being the willing victim.
November 16, 2010, 1:11 pmValentino Rossi says:
If they didn’t before, the do now: http://www.infowars.com/tsa-now-putting-hands-down-fliers-pants/ I don’t see how anybody can support these methods.
November 16, 2010, 1:14 pmIspep Teid says:
As far as rhetorical moves go, I think that’s a pretty good one.
November 16, 2010, 1:15 pmMatt says:
Sadly I doubt that is the case (CBS survey: http://www.cbsnews.com/8301-503544_162-20022876-503544.html ) But it seems like there has been much more attention to the issue in the last week or so, particularly after announcement of their new genital groping policy for the pat downs.
November 16, 2010, 1:17 pmIspep Teid says:
Except for the small fact that the TSA hires a bunch of mouth-breathing morons. This is what we get from the TSA.
November 16, 2010, 1:18 pmjsmith says:
That would be a valid separate purpose. I just don’t think it’s an issue here. Other than the anecdotal account of co-workers insulting/assaulting each other (which won’t happen in a line of people unknown to the reviewing TSA officer) there is no evidence to suggest that reviewers will become fixated on the size of someone’s junk. I have to wonder – would everyone opposed to the scanners also ban low-cut tops so we can’t see the size of the female wearer’s breasts in order to ‘safeguard the individual dignity of the viewer and viewee’.
I don’t think these scanners are a good idea at all – actually I think airport security has become totally ridiculous and unjustifiable. It is highly unlikely that any sensible terrorist would waste their time on planes when they can blow up a few subway carriages and far more effectively cripple a city and strike fear into a populace. ‘Sensible terrorist’ is a bit of an oxymoron, but the ones who attempt to blow up planes despite the added security and low probability of success will be the least likely to succeed. Most people would be willing to take the risk of flying without a huge number of the precautions currently in place.
I do object to the reasoning of some objections to these scanners – which focuses not on the overall pointlessness of most airport security measures but on the fact that these scanners allow you to be seen naked. That is not an issue for the reasons I’ve mentioned, so the outrage that this policy has suddenly generated seems caused more by prudishness than by actual, you know, facts.
November 16, 2010, 1:19 pmLily says:
November 16, 2010, 1:21 pmanonymous says:
A new poll by CBS news:
Should Airports Use Full-Body X-Ray Machines?
Yes 81%
No 15
Maybe because after decades of Blame America first, overreacting to issues of profiling, growing Federal scope and reach and concomitant responsibility to ensure blah blah, hysterical risk aversion, etc. we’ve become passive sheep flying in cattlecars?
November 16, 2010, 1:24 pmCan't find a good name says:
While polls have shown large majorities in favor of the airport X-rays, Nate Silver at FiveThirtyEight pointed out yesterday that the vast majority of Americans had not yet had to go through the new style machines.
In fact, intrusive airport scans/patdowns were hardly on my mind last week, and now it seems like one of the most important issues facing the country. This is a subject where public opinion might change dramatically in the near future, especially with all the air travel that non-frequent travelers are going to do next week for Thanksgiving.
November 16, 2010, 1:27 pmTed says:
I’m a bit confused on the consent issue that Chris Travers raised. My first impression was that he is spot on. When you buy a ticket, you consent to a search before boarding the aircraft. I thought this was pretty clear, until Ricardo wrote:
Does this void consent for the purpose of 4th Amendment searches? Can a legislature make a law that says you don’t have to consent to a search of your vehicle, but if you refuse to do so, you have to pay a fine or go to jail, essentially criminalizing refusal to consent?
Also, what’s the point of disallowing people to refuse searches and take a bus? Obviously, a person is going to put up with bunch of crap after they pay hundreds of dollars, but if they reach their limit so what? Let them leave, the point is to keep terrorists off airplanes, not catch terrorists, generally.
November 16, 2010, 1:28 pmDennis says:
I do not rule Russia. Ten Thousand Clerks do.
November 16, 2010, 1:29 pmCzar Nicholas I (1796-1855)
Ted says:
This isn’t correct. Willful submission to a search is consent unless given under duress. Not being able to fly is not “duress.” Now, if you were to to be all hopped up on lettuce….
November 16, 2010, 1:32 pmDan Weber says:
[preview messed up]
Maybe recruiting <a href="http://consumerist.com/2010/07/tsa-advertises-for-airport-screeners-on-pizza-boxes.html"on pizza boxes isn’t the best move?
I see what you did there.
November 16, 2010, 1:33 pmmatt d says:
How about killing a non-cooperative copilot, with a view to crashing the plane into some landmark? Not all pilots are licensed for guns, and none are licensed for knives.
November 16, 2010, 1:36 pmDan Weber says:
(Previous comment eaten for having a blockquote.)
TSA recruits on on pizza boxes. Perhaps not the sharpest knives apply.
I see what you did there.
November 16, 2010, 1:37 pmSecurityGeek says:
A question for the lawyers, how does the TSA levy this $11K penalty? Do I have a right to a jury trial before paying this penalty? Civil or criminal?
I think there are a lot of people who would love to have this discussion in front of 12 other citizens. $11K is cheap for becoming a civil liberties hero, especially if you get pro-bono representation.
November 16, 2010, 1:37 pmDon Miller says:
Actual terrorist tactics that would expose this “security theater” that TSA has thrust upon us:
Shoot down airliner, or damage it, from a shoulder launched air defense missile fired from outside the airport perimeter. Requires a reliable source of good MANPADS, has been attempted in Africa, rumored at attempts in other places.
Attack suburban shopping malls – Why hit shopping malls? easily attacked, easy to get weapons. handful of shooters can do lots of damage, couple small bombs Hit a shopping mall a month for a year in mid-size cities, Salt Lake, Des Moines, Eugene etc you would really freak out the general public. This idea came from a writer who used it as a plot device, but it is still valid.
November 16, 2010, 1:37 pmRoger the Shrubber says:
As I understand it, they only carry handguns if they have received the required training (which is fairly extensive), and those who are certified to carry the handguns do not thereafter face screening from TSA.
My flight instructor, a former 737 pilot, got certified to carry a weapon solely because the TSA drove him nuts.
November 16, 2010, 1:40 pmMatt says:
Yes, I think that was the story I referred to elsewhere in my post. My general point was that we can object to giving up our privacy even if the TSA is 100% professional. ( I agree with you it’s not in reality)
November 16, 2010, 1:40 pmPoul says:
probably not, he’s just an incompetent narcissist, so the only way to make him do something is to hurt his ego.
November 16, 2010, 1:41 pmPoul says:
i was aiming at effectiveness more than accuracy…
November 16, 2010, 1:43 pmKatahdin says:
I flew in the couple of months following 9/11. They would set up a table by the boarding gate, with a couple of screeners. Then they would announce ‘passengers Smith, Jones, and Brown have been selected for additional screening’. Smith, Jones, and Brown would report to the tables and have their carryons rummaged through. This is trivial to defeat – if you have the Uzi in your briefcase and they call your name, you just leave, miss the flight, and try again later.
This applies to any random enhanced screening – if you let people opt out after being selected, random screening has no deterrent value.
That said, I’m not sure the logic applies to this case – IIUC the screening isn’t random – you get the scan or the grope, your choice, but (unless you haven’t been keeping up) you can’t hope to get through without one or the other.
November 16, 2010, 1:47 pmrtha says:
Does the threat of a $10,000 (or is it $11,000?) fine count as duress? (Not snarky, genuinely wondering.)
November 16, 2010, 1:54 pmDan Weber says:
Yeah, not being able to back out is like a “man trap” in physical security. If you want entrance to the building, you first enter a room where the door locks behind you, and then you scan your badge/ID/whatever to get to the next room.
It makes it really hard for attackers to probe security — an attacker has to get it right the first time. (It was demonstrated in Sneakers, although of course our heroes got around it.)
The “$10,000 fine for leaving” serves a similar purpose. I’m generally not trying to defend TSA, and I wonder if it was clear enough to people that they were passing a point-of-no-return, and what was waiting on the other side.
November 16, 2010, 1:58 pmtamerlane says:
Here’s a reason!
November 16, 2010, 2:01 pmptt says:
I have little doubt the incoming GOP majority will leap on the chance to stick it to Obama and his socialist pat downs!
That this program was authorized years ago under the previous administration when Republicans held both houses of Congress and ran Homeland Security is, as usual, irrelevant.
It’s sad, not only because we have such an immature polity, but also because we won’t get to call these things what they really are: BushScans and GOPats or GrOPes.
As for the scanning, I wouldn’t mind so much if they’d just turn up the thermostats at the airports.
November 16, 2010, 2:01 pmSueSimp says:
Okay, I had missed those numbers, and they are scary. But they also seem entirely divorced from the visible reactions of people that are going on now — anonymous statistics aside, have any politicians or even marginally well-known commentators come out in support of the full body scanners? Again, Napolitano or others in security agencies don’t count.
(Also, I am not convinced poll respondents knew what the poll was referring to. A copy of the language used in the question is here. “Some airports are now using “full-body” digital x-ray machines to electronically screen passengers in airport security lines. Do you think these new x-ray machines should or should not be used at airports?” There is nothing in this question that would indicate to someone who didn’t already know about the scanners that the level of detail provided by them is far greater than anything the TSA has used before. In fact, I think it’s a safe bet at least some number of the respondents assumed the question was simply referring to the metal detectors that are already in use.)
November 16, 2010, 2:03 pmpc says:
That particular case was complicated by the fact the (potential) passenger was ordered by TSA officers and an LEO to leave the security area. It wasn’t until he was about to leave the airport — at the direction of the TSA and LEO — that he was told to come back to the screening area. Does the threat of a $11k fine make the TSA supervisor’s action a detention? This entire security charade is Kafkaesque.
November 16, 2010, 2:04 pmPoul says:
citation needed, as they say. reuters seems to think different:
November 16, 2010, 2:11 pmDennis says:
Actually, didn’t it start under the Kennedy administration, when they installed metal detectors. I think we can agree the process has evolved.
I gotta give you your creds, there. [Thumb up]
November 16, 2010, 2:16 pmMike Jesse says:
I’ve not traveled by air in a few years, so I’m a bit fuzzy on this. At what point do I waive my right to say “I do not consent to being searched with ionizing radiation, and I do not consent to my genitals being touched by a non-trusted stranger.” ?
Under pain of 10K penalty, if i’m waiving my rights, not just for a general search (hell, WAL-MART claims to reserve rights to a bag search. Nobody reads that sign and thinks the sack they want to check isn’t the one with groceries in it) but for very intrusive, potentially molestation level searching, then that should be somewhere, in big bold letters, requiring some kind of direct acknowledgment right?
I mean, At least a little box or a button that says “I accept” to a statement explaining the level of molestation that I am accepting, on pain of fines and at least temporary detainment. Anyone fly recently, and have a copy of what language, if any, is what is explicitly agreed to?
November 16, 2010, 2:18 pmDilan Esper says:
I take Professor Kerr’s point on the Fourth Amendment. Indeed, I suspect that this is the type of thing where the old talking point about judges not making policy has a lot of force. How is a judge supposed to know what is or isn’t necessary to prevent a mass terrorist attack? It’s hard not to defer to the authorities here.
What gets me, however, is that I really think the authorities’ incentives are so biased towards not being the ones who get blamed for a terrorist attack if one occurs that the interests of the traveling public (other than safety from terrorism) get short shrift. In other words, I suspect nobody ever gets fired or blamed for approving a new, even more intrusive search, but everyone gets fired or blamed if there’s another attack.
And the result of that sort of calculus is a situation where no decision maker even cares how much they are burdening the traveling public. (This, by the way, is probably made even worse by the proliferation of private jets, which allow wealthy travelers who might have actually effectively screamed about these measures to opt out of airport security entirely.)
I truly suspect that there are people in the Department of Homeland Security who are so singularly focused on preventing terrorist attacks that they would be willing to approve cavity searches of travelers if they found evidence of someone concealing explosives or weapons there. And that’s basically a recipe for continued greater and greater inconveniencing of and intrusions upon the traveling public over the time.
I am not sure what the solution to this is, especially given the poll cited in this thread. But it does strike me as a classic statement of the problem Ben Franklin posed about trading liberty for temporary security.
November 16, 2010, 2:18 pmruuffles says:
Freedom-hating democrats strike again.
November 16, 2010, 2:21 pmptt says:
I’ve closed those browser windows, but after slogging through all the clutter of current hits about the hue and cry against the scanners, there were plenty of citations about TSA running tests and studies of full-body scanners going back to 2003, 2004, and 2005. Check out the footnotes at EPIC.org, for example.
Among them:
http://www.wired.com/science/discoveries/news/2003/06/59401
P.S. I have little doubt Congress passed bills about this with strong bipartisan support. That will be ignored, I suspect, by some segments of the population.
November 16, 2010, 2:22 pmChris Travers says:
The problem here is that the question is whether there is a Constitutional right to decline to consent to a search of this sort. Does the 4th Amendment protect an individual’s right to say “you know, this is too invasive, I’m not consenting?”
Also I am noting that some checkpoints in some airports can be walked around by some passengers……
November 16, 2010, 2:22 pmptt says:
I’m sure that, in time, that too will come to pass.
November 16, 2010, 2:24 pmhappycynic says:
Why is probable cause such a burden in this one context? If you revoke consent the government doesn’t have to just wait for another attempt, it is free to start an investigation and develop probable cause for a warrant or otherwise, if it has not done so already.
November 16, 2010, 2:27 pmChris Travers says:
Moreover there is nothing in that question to address the scale of use. I, for one, have no problem with such scans on individuals where there is individual suspicion. I have a huge problem in undermining the right to be secure in our persons against unreasonable searches because you can bet our homes are coming next. Routine use of these machines has no place in a free society.
November 16, 2010, 2:33 pmPhelps says:
As an initial hurdle, wouldn’t they need to show that the new technology is actually more effective? If they catch the same people as the magnetometer, and wouldn’t have caught the underwear bomber (and all the experts I’m seeing quoted say that it won’t) then isn’t it by definition more intrusive than necessary?
November 16, 2010, 2:33 pmPoul says:
running tests and studies is very different from authorizing mass deployment in nation’s airport, don’t you think? tests and studies may provide negative conclusions in intellectually honest environment…
November 16, 2010, 2:46 pmPoul says:
metal detectors do not subject your body to radiation, which inflicts cumulative damage. in other words, don’t compare apples and elephants. whatever non invasive detectors they use is fine by me. if they want to install explosives sniffing detectors, or add questioning agents israeli style, or remote lie detectors, as long as it works, let it be.
it’s the radiation from obamavision and groping during obamapats that are the problem.
November 16, 2010, 2:52 pmCorkie the Dog says:
Far from *saving* lives, I would imagine that these new “procedures” will actually *increase* the death count, as more people choose to drive rather than fly. (Driving is far more dangerous.)
Also, I imagine our nation’s enemies are chuckling at the angst they have created among us. It may look like their goal is destruction, but it is actually terror. And this latest debate looks like a success, from their POV.
It may be that these searches are constitutional, or at least that our nation’s courts should defer to the political process as to the “reasonableness”. But that doesn’t mean they are a good idea.
Sincerely,
November 16, 2010, 2:55 pmCorkie the Dog
recent grad says:
As a frequent flyer with a pacemaker, I find these scanners to be a godsend. Now, rather than being groped every single time I fly (which is v. slow, tedious and a lot less fun than it sounds), I can show some shmuck my ass and be on my way!
November 16, 2010, 2:59 pmIspep Teid says:
You’re probably right. But I can’t think of a single instance in which that sort of reasoning has been politically persuasive.
November 16, 2010, 3:05 pmEllie says:
Except calling it “obamavision” turns this into a partisan issue. This strikes me as one of the few issues in which people on both the right and the left agree. I have seen articles on WND and on Daily Kos, both of which made almost the same fourth amendment arguments.
November 16, 2010, 3:12 pmpc says:
Just because you go through the scanner doesn’t me you won’t be groped. Having a piece of paper in your pocket can make you the subject of a full frontal gropedown.
November 16, 2010, 3:26 pmgeokstr says:
I think we should have a pool – winner is whoever is closest to the correct date on which the first of the full-body scans, you know, the ones that are, like, totally private and destroyed within nano-seconds, show up on the internet, en masse.
I predict that there would never be a winner, because the confidentiality of its citizens has been shown over and over to be a primary concern of governments at all levels. Like, you’ll note that it never happens that court-ordered-sealed divorce settlements of primary and general election opponents never show up in the press just in time to smear them and ensure the election of clean, articulate candidates for US Senate.
November 16, 2010, 3:49 pmGeoff says:
I’m leaving for Germany day after tomorrow, and I must admit I’m not looking forward to it now. I’ve already been millimeter-wave-scanned once and didn’t like it, but I’m not about to allow myself to be groped instead. I guess it’s the lady or the tiger (does anybody remember that one?)
The number of commenters above who think, essentially,
‘Our government has decided to do this; there must be a reason behind it’
is frightening.
And having met and interacted with Bruce Schneier on several occasions I am amused at his being referred to by those not in the security industry (which I actually am in) as ‘some guy on the web’. CNN certainly doesn’t refer to him that way (not that journalists are the best experts on who’s an expert).
November 16, 2010, 3:56 pmThe ultimate point behind all of this kerfuffle is that these machines probably don’t detect explosives, and random genital gropes probably don’t either, but they do have the effect of appearing to DO SOMETHING and that’s what it’s all about.
And it’s certainly a bipartisan DO-ing of SOMETHING, so mobilizing the Repubs won’t help a whole lot.
I’m very discouraged about this–nothing is going to happen. It’s already been said (even by people on this blog, among other places) that flying is not a right. Given that flying is pretty much the only way to get to certain places (such as any other continent), that about says that world travel is not a right. So much for the ability to ‘vote with your feet’.
Morrision says:
A new poll by CBS news: Should Airports Use Full-Body X-Ray Machines?
Yes 81% No 15
Just another bogus, non-scientific, media telephone poll.
Aside from the biased question structure/process, the non-response rate of the original poll sample was over 80%… negating any semblance of valid statistical sampling. One can not draw any scientific conclusions about the opinions of the overall ‘population’ from such a flawed sample.
But who needs facts when we’re fighting terrorism or applying the 4th Amendment ?
November 16, 2010, 4:17 pmFear and emotion are what count at airports.
Chris Travers says:
Agreed. Also it’s worth noting that this issue is currently before the courts in EPIC v. DHS. Apparently Schneier is one of the co-plaintiffs :-)
November 16, 2010, 4:20 pmPorkchop says:
What is truly pathetic about all of this security theater is that anyone with minimal internet search capabilities can find out how to construct very effective improvised weapons from materials that the TSA would never question. You may be able to keep firearms off planes, but the 9/11 guys didn’ have them — they used blades. Give me a ball point pen, a credit card, three dollars in quarters, five rubber bands, and a magazine, and I have the ability to create at least three improvised weapons that are disabling, and in the right hands, potentially lethal. A short LED flashlight wrapped in paracord gives me two or three more.
All of those items are commonly carried onto planes. If an old guy like me can figure it out, an up-and-coming terrorist certainly can.
I bet that al Quaeda HQ has a library chock full of Paladin Press publications, among other things.
November 16, 2010, 4:27 pmjcp370 says:
Are there actually readers that think that Orin Kerr would be defending TSA’s policy if it wasn’t Obama in the White House? Could you see him making these argument under Bush? ROFLMFAO.
As many times as I see it, I never cease to be amazed and amused by the left’s total lack of principles on anything. KSM – hey, no trial, no problem. TSA groping your private parts – it’s for the our own protection. And so it goes. Until a Republican is back in the White House again.
Except I don’t remember it ever being this blatant before. And even people who don’t follow politics have begun to notice the blatant hypocrisy. And we have the new media so the left is losing control of the narrative. We live in interesting times indeed.
November 16, 2010, 4:39 pmAnthony says:
In terms of radiation dose to passengers, backscatter X-ray machines are essentially irrelevant — it’s equivalent to adding 1-2 minutes to your flight duration (due to cosmic ray exposure at high altitude). As far as pornographic use, have you ever actually looked at the images produced by one of these machines? Pornographic they’re not; between a pat-down search and one of these imagers, the pat-down has far more titillation potential.
This isn’t meant to comment on the privacy issue, but if I can save a few minutes in line by dealing with one of these scanners, that sounds like a deal to me.
November 16, 2010, 4:40 pmPhelps says:
If you believe that the proper measurement was used, and if you believe that they are properly calibrated when they are installed, and if you believe that none of the luggage sniffers who have rotated by on the machine haven’t fiddled with the knobs “to make it look brighter” and if you believe that the TSA maintenance people know how to properly maintain a radiation source.
Me? I don’t believe any of those things. The good news is that they are constant on, and the TSA agents spend most of their day walking in and out of it, so the civil suits over the epidemic of cancer among them in the next 5-10 years will be very entertaining.
November 16, 2010, 4:47 pmChris Travers says:
I disagree with Orin on this point. I don’t think there is a significant difference between strip-searching a 13 year old girl in school because you think she might have prescription-strength tylanol without permission and virtually strip searching a 13 year old girl as a general, non-individual precaution against terrorism. Indeed, insofar as the first case has any sort of individualized suspicion it seems less of a 4th Amendment issue to me (given the history of warrantless searches and wide-area search warrants in colonial times) but IANAL.
However, this being said, I think that Orin has been remarkably consistent in his positions. I don’t think he bases them at all on who is in the white house or whether it will win him popularity contests or the like.
November 16, 2010, 4:49 pmMatt P. says:
I, too, think we should have a pool. The winner of mine will be the person who guesses the correct date that some overly-aggressive or overly-friendly TSA groper gets kneed or punched for getting a little too close.
November 16, 2010, 4:58 pmPoul says:
yesterday?
November 16, 2010, 5:01 pmhttp://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans
jsmith says:
If you’re serious then you’re paranoid. Get help.
Not least because the x ray machines that go through your luggage have been properly maintained and used for years. Your other speculations are just that – with no proof. Using your logic you would be justified in acting on a belief that unicorns are holding up the sky and you must pay blood sacrifice to them every morning. Unless you have facts you’re entitled to no respect that government agencies are negligent or fradulant or both.
November 16, 2010, 5:01 pmPoul says:
some scientists may have an issue with this claim:
and some X-ray lab doctors are not convinced either:
http://www.smh.com.au/travel/travel-news/nude-airport-scanners-may-be-dangerous-scientists-20101115-17t9m.html
now, what are your sources?
November 16, 2010, 5:06 pmjsmith says:
Hang on, saying ‘statistically someone is going to get skin cancer’ is a bit like saying ‘statistically someone is going to die in a car/plane crash at some point in forever. Your other source is respectable and makes a good point, that one is a bit silly.
November 16, 2010, 5:09 pmOrin Kerr says:
jcp370 writes:
Wouldn’t I actually need to be on the left — or at least someone who voted for Obama — for this grand theory to work?
November 16, 2010, 5:14 pmPoul says:
not really. what he’s saying is that it’s a scientific fact that without these machines, N people in USA will die yearly from skin cancer, while with these machines, the number is N+M, where N and M are greater than zero.
think of it in terms of population statistics – how many more people statistically will die of cancer due to this radiation vs. how many more people statistically will die in acts of terror if these machines are not deployed? this is the true math of “saving lives” here.
unless we see a study that answers this exact question, all TSA claims about safety of these machines are a bold faced lie.
November 16, 2010, 5:15 pmjsmith says:
I don’t think it’s quite fair to assume that someone is lying unless you see a scientific study to the contrary. Particuarly as your only source doesn’t say ‘millions of people will die’ or ‘run, run from the evil machines’ he just says ‘someone will get skin cancer’. If one person in one billion gets skin cancer (a treatable cancer) from a machine that detects a bomb then arguably your source is right, but the risk, as with flying and car travel, is perfectly justified.
November 16, 2010, 5:22 pmBart says:
I wonder if characterizing these debates as “constitutional” (what may the Government do) instead of “political” (what ought the Government to do) is erroneous. When I listen to the substantive argument I hear much more of the latter than the former.
There are three factors that seem to be influencing the politics of the argument: (1) the increasing length of time since the 9/11 attacks; (2) the change in 2009 from a Republican to a Democratic President; and (3) the natural momentum of Government (in the absence of a countervailing force) from less-to-more restrictive security measures.
The influence of these factors is quite understandable and predictable. We are quite free to have any federal regime we wish: from one in which the federal government does nothing to minimize the likelihood that a person on a commercial airplane is carrying a weapon to one in which the federal government engages in exhaustive background, physical and psychological checks before allowing anyone on board.
If we can use the Government in almost whatever fashion we wish to accomplish this task (I’m arguing that the Constitutional boundaries are far outside the current range of Government activity), the debate is much more difficult; there is no effective way to measure what the Government is doing against a “principle” – we can argue only “better” and “worse” and not “may” and “may not”.
The impulse to argue political matters as constitutional ones ends up weakening our ability to think critically, with the Constitution, unfortunately, becoming a crutch – a tool we use to minimize the amount of explaining we need to do.
November 16, 2010, 5:24 pmChris Travers says:
It’s OK if we kill some of our passengers with ionizing radiation as long as the Terrorists don’t get to have that honor, right?
November 16, 2010, 5:26 pmPoul says:
that’s the study i want to see – how many? without this study published, the default assumption is “too many to publicly disclose”, therefore the default assumption is that they are lying. the onus to prove the safety of irradiating millions of people with x-rays is on them.
November 16, 2010, 5:26 pmjsmith says:
I agree with this and think the same analysis is also applicable to a large number of other debates such as whether something is or is not free speech. People’s arguments too often consist of ‘First Amendment Says No’*, without anything more.
*Bonus point to anybody who gets the reference
November 16, 2010, 5:28 pmPoul says:
Oren,
IANAL, but i read Wikipedia:
doesn’t this apply here? on the surface of it, i would limit irradiation and groping to hostile strangers only…
November 16, 2010, 5:30 pmjsmith says:
Well there hasn’t been a study, because these machines have only been introduced recently. Study about the effects of something on people take years, if not decades, to complete. So there’s nothing to disclose and your logic is flawed.
November 16, 2010, 5:34 pmPhelps says:
Negligent: http://hawaiipoliticalinfo.org/?q=node/2252
http://edition.cnn.com/2008/US/01/28/tsa.bombtest/index.html
Fraudulent: http://news.cnet.com/8301-31921_3-20012583-281.html
If you could bet 1:1 on government incompetence, you would be able to make a fortune.
November 16, 2010, 5:38 pmPoul says:
you have no foggiest idea what you’re talking about. no x-ray equipment would be ever released into open without such study.
from the source: “We also conduct safety evaluations as part of our laboratory, TSA Systems Integration Facility (TSIF), operational and site acceptance testing procedures”. http://blog.tsa.gov/2009/11/response-to-oops-backscatter-x-ray.html
November 16, 2010, 5:44 pmDennis says:
Those are among the least of things I would worry about. First of all, machines of this type are designed so the operator has no control of the radiation source, other than turning it on. The display controls only control the sensor pack. To do otherwise, would be too dangerous for the manufacturer. Likewise calibration of the energy source. There won’t be an opportunity to tune it in the field.
That’s no more than saying that all radiation causes some bad effects, and going out in the sun for another second a day will statistically increase the cancer rate. A tiny percentage of a tiny number is a tiny number. Statistically, I have much bigger dangers to worry about.
Now, watch some enterprising lawyers build an industry on this. :-)
November 16, 2010, 5:48 pmChris Travers says:
Now back to the 4th Am issues.
US v, Hartwell (cited in Orin’s post) is a very interesting read. The reasonableness doctrine expressed in that opinion seems to balance the intrusiveness of the search against the public interest furthered by it. A search, if I understand the opinion correctly (and IANAL) seems to be unreasonable if the intrusiveness of it outweighs the public interest furthered by the search.
It seems to me that this case’s framework automatically distinguishes technologies based on intrusiveness and how tailored they are to protect individual privacy. ISTM that a plain reading of the opinion there cannot hope to analogize metal detectors and virtual strip searches.
Indeed the discussion of the minimally intrusive nature of the airport search in question in that case seems to cut directly against full body scanners. Moreover if there is an exit fine after determining the scope of the search, this would cut against the Constitutionality further.
I respect the fact that Orin has only characterized this as an uphill battle rather than something which is per se Constitutional in the way that a metal detector is. It seems to me that this raises quite interesting questions which will hopefully be resolved in court (EPIC v. DHS or similar).
November 16, 2010, 5:58 pmMartha says:
A friend who is a pilot was recently stopped by TSA for carrying a small pocketknife. He said, “Once I get in the cockpit, I’ll have an axe.” They were not swayed.
November 16, 2010, 6:02 pmPoul says:
how do you know?
November 16, 2010, 6:11 pmpc says:
Was this the same facility that passed the puffer machines? The machines they had to pull because the TSA’s “Integration Facility” didn’t realized the machines would have to deal with things like dust when they were deployed?
Your chance of dying in a terrorist attack on an airplane is 1 in 25,000,000. Your chance of being struck by lightning is 1 in 500,000. Perhaps the TSA should force everyone to wear lightning proof clothing. You can never be too safe.
November 16, 2010, 6:17 pmBill Johnson says:
The reasonableness is not in the search, but in theobject of the search. Why search me? What probable cause do you have to search me?
Probable cause is a whole lot like a warrant, no? Where’s your warrant that mentions me, specifically, and what judge signed it?
(unprintable verb) the TSA.
And you should have stood up and fought the DUI checkpoints – same unreasonableness, same justification – ‘we do it to everybody’. Don’t make it right.
Get simple, lawyers.
November 16, 2010, 6:23 pmDan Weber says:
There are about 120 airline deaths a year, out of about 750 million trips. That’s about a 0.000016% chance of dying, or 1 death per 6.25 million trips.
If these scanners reduce the chance of death by one-half, then there will be 1 death per 12.5 million trips.
So, if we scan nearly everybody, that means we are “treating” 12.5 million people to save 1 life. That means exposing people to 250,000 microsieverts to save that 1 life (based on the TSA’s estimate of 0.02 microsievert’s per walkthrough).
That’s 25 rem, or a 1.0% increase in the chance of fatal cancer. (Assuming linear response, which isn’t a given, but a reasonable starting position.)
There are many assumptions in my above numbers; the reduction in the risk from these scanners is the fudgiest. If it only reduces crash risk by 10% instead of 50%, then you have to expose 62.5 million to save 1 crash life.
November 16, 2010, 6:30 pmGlen says:
What is the current law on declining to complete the TSA screening process?
If someone discovers the process to be objectionable, is there any reason they cannot simply choose not to fly and walk away? If so, why not? And if not, what would be the constitutional basis on which the government could force someone to submit to a search absent making a choice to board an airplane?
Note that the TSA San Diego office is now investigating John Tyner “for leaving the security area without permission.” This article in the San Diego Union-Tribune goes on to note that, “[Chief of the TSA office in San Diego Michael J.] Aguilar said that once a passenger enters the security area, there is a legal obligation to follow through with the process.”
November 16, 2010, 6:56 pmChris Travers says:
I’d start with the assumption it might stop, say, one attack in three years. That’s exposing all passengers in 750M x 3 is 2.25B flights to reduce the chances of a successful attack. Now, given that the last two attempts have been foiled by alert passengers, let’s multiply that by another 3 to be conservative. That’s an average of 6.75 billion (B!) scans to save one life. So I’d say you are being optimistic by two orders of magnitude.
November 16, 2010, 6:57 pmDon M says:
“Two by two, hands of blue…”
For all you Firefly fans.
November 16, 2010, 7:13 pmBC says:
And after you deliver this righteous rant in a brief or in open court, the judge and the government attorney will take turns laughing at you, because you were apparently absent from your Criminal Procedure class the day they taught the administrative/special needs search exception to the warrant requirement.
Look, I hate the Strip-N-Grope screening process with the burning intensity of a thousand suns. Not only is it far beneath the dignity of free people, but the incremental security benefits of the process over the existing degrading screening processes are negligible.
That said, I think it’s incumbent on critics of the process to raise colorable legal objections rather than simply shouting bumper-sticker slogans like “Where’s the warrant?” Judicial treatment of the Fourth Amendment has gone horribly off the rails, in my view, but we have to deal with the law as it is rather than as we think it ought to be.
November 16, 2010, 7:19 pmDebrah says:
Let’s dismiss with the antimacassar niceties and cut to the chase.
This comment thread is a mask…….necessary for even the most intellectually honest among us.
None of the aforementioned measures would be necessary if only this country would handle these issues the way Israel does.
Like perhaps focusing on what’s real!
But no.
The archaic and insanely political correct kabuki show rules.
Ninety-five percent of the people so screened through these expensive and time-consuming procedures do not even come close to fitting the profile of those who actually need to be pursued.
November 16, 2010, 7:21 pmMartha says:
This was my experience recently. I went on a weekend trip with a small carry-on. My luggage was searched by a guy who pawed through everything, even opening the case in which I keep my toothbrush (next time I will plan to bring a fresh toothbrush still in store packaging so that I’m not stuck with one that was handled by someone’s dirty rubber gloves).
Then I went through the body scanner, which required more disrobing and pocket emptying than the metal detector, and the scan takes longer than the metal detector, too. You have to stand with your hands behind your head, elbows out, and wait, during which time you know unseen people are checking out all your private areas. Then, someone radioed from the secret room and told the agent that my clothes were insufficiently transparent around my waist (elastic waistband, *sigh*). So I was also patted down.
I am your average mild-mannered, middle aged woman, someone who shuffles patiently through lines without complaining, but next time, if I can, I will drive.
November 16, 2010, 7:31 pmanonymous says:
That said, I’m not sure the logic applies to this case — IIUC the screening isn’t random — you get the scan or the grope, your choice, but (unless you haven’t been keeping up) you can’t hope to get through without one or the other.
Katahdin, are you saying everybody has to submit to the body scanner or TSA (Gropius) enhanced pat down? I thot it was still random, based on accounts currently circulating. The “don’t touch my junk” man said virtually everybody else only had to pass through metal detectors during his aborted “exam.”
Seems to me the super scrutiny is still a matter of losing a security lottery. Do I have it wrong?
November 16, 2010, 7:35 pmGlen says:
It seems that United States v. Aukai, 497 F.3d 955, 958 (9th Cir. 2007) (en banc) is directly on point. In that case, the Court said:
What’s the case law in other circuits? And what’s the limit on a “reasonable” search? Are the TSA’s current “enhanced pat-downs” presumptively reasonable? If so, by entering a TSA screening area, is one irrevocably submitting oneself to the same level of intrusiveness that the police are permitted in a Terry Stop? Can a TSA search be more intrusive than a Terry Stop?
November 16, 2010, 7:39 pmSarcastro says:
Oh, come clean Orin! It’s pretty obvious you wrote in Kucinich.
Everyone on the whole of the internets seems to agree this is bad policy, if not Unconstitutional. Agreement is not what the internet was invented for Therefore, I’d like to politicize this issue by insisting profiling is the only way to be truly safe in the air.
November 16, 2010, 7:40 pmChrisTS says:
@ruffles:
Thanks for the survey link.
@All:
I usually read all the posts in a thread before commenting, but this time you all got way far ahead of me! So, forgive my blegging if the questions have already been answered.
(1) I would like to know more about the radiation ‘dangers.’ As a child with a positive tuberculosis skin test, I was stood up against a wall and blasted twice a year for 14 years (until our GP told my father this was no longer acceptable). When I go to the dentist, or have to get a broken limb x-rayed, there are all kinds of protection for me and the technician.
What, really, are the risks of the scan?
(2) Does the body pat-down necessarily include genitals and breasts? Can one accept a less ..personal.. pat-down but refuse the full, full approach?
November 16, 2010, 7:40 pmChrisTS says:
@Martha:
Yes, avoiding air travel has become a reasonable choice for whenever we can do so. I have colleagues who have decided to not go to other-coast or international conferences because of the misery of it all (the security hassle as well as the lack of legroom, non-amenities, etc.)
For those who simply must fly: for gods’ sake, avoid Newark like the Plague!
November 16, 2010, 7:45 pmnick says:
we dont even search for terrorist in afghanistan this instrusively! and guess what ! they kill americans there every day!
since jury pools are mandatory – when I am on a jury forced to undergo search, I vote for aquittal – just Like I did in june ! if they want to make mockery of rights I can vote as I wish (no im not letting a murderer get away)
November 16, 2010, 7:48 pmGeoff says:
I’m guessing that the dangers (from a purely physiological point of view) of the scan are probably negligible, and the scientists who suggest otherwise are scaremongers.
November 16, 2010, 7:52 pmThat said, the moral and sociological dangers of the scanners are great, as this whole thread has elucidated.
Yes, the new, improved body pat-down (awarded in case of refusal to be scanned) is required to include private parts. I can’t tell for sure whether this is to discourage people from electing body searches, or whether someone conspiracy theorist deep within TSA actually thinks this is necessary.
pc says:
Are police allowed to make you pull your pants away from your waist then stick their hands in your pants in a Terry stop? Because it appears that’s what the TSA is doing now.
November 16, 2010, 7:54 pmChris Travers says:
I was thinking about the line in B5 (“Dust to Dust” iirc the episode) where Alfred Bester tells Garibaldi something to the effect that “Let me get this straight. You and I are on the same side. There are threats you never hear about because we stop them.” (Later Garibaldi says “There’s this little thing called due process. We’re kind of funny about it.”)
It’s chilling when it’s about the Psi Corp. It’s just as chilling when it’s about the Department of Homeland Security.
November 16, 2010, 7:56 pmAnthony says:
That’s actually the TSAs max dose requirement; the actual dose is somewhat lower. In any case, another way of looking at this is to figure that premature cancer might cut 25 years off of your life, or 1/1,000,000 of a year per microsievert, or about 16s per walkthrough (at actual dose figures, it’s more like 4-7s).
Which is enough that I don’t recommend doing it a thousand times per day, but if it can save 16s waiting in line, it’s paid off.
November 16, 2010, 8:09 pmBC says:
Glen, I’d argue that the “enhanced patdowns” are significantly more intrusive than a Terry search. Remember that the scope of a Terry search is limited by its justification: “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29 (1968). Passengers have described these “enhanced patdowns”, on the other hand, as bordering on sexual assault, well in excess of a minimally-intrusive frisk of outer clothing.
Indeed, there’s some anecdotal evidence that the TSA has an informal policy of making the “enhanced patdowns” as intrusive and humiliating as possible, in order to make the AIT screenings seem like the lesser evil.
November 16, 2010, 8:32 pmGlen says:
No doubt.
But as Prof. Kerr said, a TSA search is an administrative search and “it is reasonable so long as it it is not overly invasive given the threat that it is designed to deter and stop.” Given that the threat is supposedly weapons and explosives, and that hiding those within the body cavity is now a given fact, what is the limit on reasonableness?
November 16, 2010, 8:46 pmRicardo says:
Indeed, one article I saw compared them to PC searches rather than Terry “reasonable suspicion” searches.
November 16, 2010, 8:51 pmChris Travers says:
I’m thinking of wearing a sports cup next time I go through these checkpoints. And I’d explain to the TSA officer what I am doing and that I don’t consent to be looked at nude or felt up, but that they are welcome to do a pat-down search but no further.. I’d recommend leather bras for the ladies too ;-)
November 16, 2010, 8:56 pmBC says:
As is the frequently case with legal doctrines pulled out of the filthy heat of a judge’s rear end, I don’t think administrative search/special needs search doctrine has any principled limits. And it’s unworkable as a practical matter because of what Dilan mentioned upthread: authorities’ incentives are aligned towards always and everywhere compromising freedom for the sake of security, and you can always — always — come up with some unlikely way by which existing security measures can be circumvented in order to justify new, more intrusive security measures.
November 16, 2010, 9:06 pmwhit says:
this much is true. I see plenty of tea partiers upset about these, as well as leftwinger, inbetween wingers, etc.
November 16, 2010, 9:51 pmwhit says:
DUI checkpoints are illegal. if you had a right to privacy. in WA state you do have such a right – thus , no checkpoints.
November 16, 2010, 9:56 pmSarcastro says:
Gotta love the inbetween wingers.
November 16, 2010, 10:39 pmRicardo says:
Even better is that they require people who elect pat-down searches to take off their belts first. Not because that actually assists them in their search but because that’s what they require of those who go through the scanner and they want “uniformity.”
Oh, and no toner cartridges allowed.
November 16, 2010, 10:53 pmBill Johnson says:
BC:
Haven’t I seen you as a troll somewhere? Ah, well, we trolls must stick together.
1) I have no legal background nor experience, except for disgust at those who revere process over… well, everything.
2) I didn’t mean to scream ‘warrant – d’jou gotta warrant?’ quite so loud. Please excuse.
3) You got a warrant for that search? NO? I gotta amendment for this gun…
November 16, 2010, 11:01 pmPandaemoni says:
Given my own aversion to these scanners, I’m rather tempted to drive rather than take faster, safer, short-haul flights. My understanding is that current odds of dying in a terrorist incident on a plane are around 1 in 50 million. To be generous, perhaps the odds in a world with these scanners is 1 in 60 million.
If more people fee like me and drive, these scanners will kill more people than they save. That ignored the cancer risks, which not everyone dismisses.
I take no issue with their being constitutional. Lots of bad ideas are constitutional. The Constitution doesn’t protect dignity, nor prohibit foolishness.
All that said, the greatest outrage is their persecution of John Tyner, possibly because he eluded screening, but possibly also to send a message to other “trouble makers”: keep your complaints private.
November 16, 2010, 11:13 pmpoul says:
considering that this radiation is absorbed by skin only, not by whole body, you have to multiply the effective doze by 100 000 – or 10 000 000, depending on penetration depth of this radiation, which i don’t know and TSA is not telling. so all your calculations are too optimistic by many orders of magnitude.
November 16, 2010, 11:50 pmpoul says:
the global warming thread is two pages down.
November 16, 2010, 11:56 pmPaco McDooby says:
What is the additional amount of death attributable to increased (and more dangerous) driving?
November 17, 2010, 12:04 amPaco McDooby says:
Under existing law? I don’t see why they can’t probe every colon and vagina that comes their way.
November 17, 2010, 12:07 amPaco McDooby says:
Remember, we could cut the risk even more by banning flight. Just something to think about.
November 17, 2010, 12:08 ambbbeard says:
Thanks for voicing this; I agree completely. Who are these nuts whom we have allowed to take over airport security? If the government can condition the right to fly on the demand that government goons fondle the genitalia and breasts of your ten year old daughter, then we are no longer a free people. I think what the TSA is doing is way past the threshold of “unreasonable search”. If the courts can’t figure this out, we need new judges.
November 17, 2010, 12:13 ambbbeard says:
Does the legislature have a role? Could Congress pass a law barring the TSA from random strip searches (electronic or not)? Perhaps they could go so far as to ban any unreasonable search….
November 17, 2010, 12:27 amBallchinian says:
Absolutely. The TSA, and more broadly the entire Department of Homeland Security, owes its authority to an act of Congress. Congress is entirely free to modify or limit the scope of the agencies’ authority, or to abolish them altogether.
November 17, 2010, 12:56 ambbbeard says:
Thanks for the link. At the TSA website there are repeated assertions that the machines cannot store images, but if you listen carefully to the video they say that the storage functions “have been disabled” on airport machines. They are not specific as to how this “disabling” has been implemented or how easily reversible it is. Did they rip out a circuit board? Did they remove a hard drive? Did they flip a toggle switch? Can a computer administrator turn it back on? Can a power user? Do the machines have a USB interface? Does writing to a thumb drive count as “storage” or not? Do they really expect their employees to hand over their cell phones (typically equipped with cameras these days)? You know, for some reason, I don’t trust these guys.
November 17, 2010, 12:57 ambbbeard says:
I am astonished how this issue has brought left and right together. I find myself in complete agreement with you on this.
November 17, 2010, 1:03 ambbbeard says:
Well, now that you’ve broken the ice, so to speak, on the issue of homosexuality and the TSA, I was wondering….
If a woman can request that their patdown be administered by a female TSA employee, ostensibly because of modesty, can a homosexual man likewise request a female patdowner? What about a heterosexual but homophobic man? Or, what about a heterosexual, non-homophobic man who is just more comfortable with women running their hands over his body?
Is it permissible for the TSA to condition employment as a screener on sexual preference? Suppose that the TSA wanted to reassure the public that the patdowns have no prurient aspect. Wouldn’t that require an assurance that homosexuals would not be assigned patdown duties?
And hey, won’t touching junk all day turn you gay? (Just kidding….)
November 17, 2010, 1:28 ambbbeard says:
I fully endorse the use of these machines if the TSA has something approaching probable cause for the more invasive search. I do not approve of “everybody get naked for the Man”. If the courts and the legislatures can’t stop this madness, then it means we have lost control of our government.
November 17, 2010, 1:39 ambbbeard says:
Speaking of opting out, apparently airports have the right to kick the TSA out and use private screening companies.
November 17, 2010, 1:41 amChris Travers says:
Agreed.
Two questions:
1) Do people subjectively expect SOME level of privacy when going through airport security checkpoints?
2) Is there some level of privacy there that society is willing to recognize as reasonable?
November 17, 2010, 1:43 amChris Travers says:
So the “Party of No” is saying “No privacy violations!”
They got my vote if they keep it up.
November 17, 2010, 1:48 ambbbeard says:
I look forward to the day when Presidential candidates release their full-body scans, just like medical records and tax returns. Then we can really judge who is best equipped to be President….
November 17, 2010, 1:52 ambbbeard says:
If you’re serious then you’re gullible.
November 17, 2010, 2:00 amStephen Lathrop says:
I won’t fly anymore. They put me in a plexiglass cell, made me unbutton my pants, stuck their hand down my crotch and groped my balls. There is no chance I could get through that again without resisting, so they’ve lost me as a customer.
November 17, 2010, 2:58 am1040 says:
hey, sign me up! no officer, that’s not a gun in my pocket. i’m just happy to see you.
November 17, 2010, 9:47 amDennis says:
Because I ride around in cars.
November 17, 2010, 10:57 amDennis says:
I would say the fudgiest of the assumptions (Is this like discussing virtue among whores?) is the increase in cancer mortality. The curve is far from linear and may cross zero at some point above zero exposure.
November 17, 2010, 11:09 amDennis says:
Israel handles these issues with a series of interviews. They do this with a daily travel volume approximating what, Cincinnati International?
Can you imagine the time it would take at O’Hare?
In addition I’m not sure the reptilian brains of the TSA screeners could handle it.
Anyone want to speculate on the nature of the objections once they start asking Grannie awkward questions or responding to politically incorrect comments? We’d be begging for body cavity searches with broken broomsticks. (Only exaggerating a little)
November 17, 2010, 11:18 amChrisTS says:
We want our country back?
We are in fact responsible for all this, are we not? (I know some will plausibly deny any part in it, so no need to cavil.)
After 9/11, we gave the government the go ahead to do everything needed to keep us and The Homeland safe. Of course, we also wanted it done on the cheap, so the payscale of those who do the work is not all that great.
We more or less gave birth to HS and the TSA by demanding or, at least, allowing our representatives to put the show of security over all other concerns (except money).
We have met the enemy, and ….
P.S. Thanks for the various responses about the radiation. I think I’ll avoid flying just to be on the safe side.
November 17, 2010, 12:09 pmChris Travers says:
If that ever happens to me the first words out of my mouth are going to be:
“Sir, I know you are just doing your job, but I don’t consent to searches of this nature. If you believe that this is a Constitutionally permissible administrative search and that my consent is unnecessary, then you will have to notify me that you are detaining me for this search prior to proceding. I’m just trying to maintain my standing in court over this. I’m sure you understand.”
November 17, 2010, 12:23 pmDebrah says:
Some fair points.
Air travel has long descended to the level of bus travel. Everything has been WalMart-ized and done on the cheap to the extent that it’s really not all that safe or pleasant.
Perhaps an overhaul of the entire airline industry is in order.
I still think the Israeli model for secure air travel would be the only logical and effective way; however, Americans couldn’t handle it.
We have to have a cover for everything that’s real and unpleasant……which is why we welcome those same people with open arms who show up on our shores to kill us.
We shower them with the same “rights” (hey, Miranda!) to tell everyone how nice we are.
How do you think Israelis have survived all these years as the only democracy inside a Middle Eastern cauldron surrounded by millions who want nothing more than to annihilate them?
They know how to handle terrorists and they don’t do so by bringing a knife to a gunfight…….or by feeling up preschoolers at airports.
November 17, 2010, 12:29 pmJaimeInTexas says:
All this TSA bullcrap will be done away in a second if all government officials, from the POTUS on down, were required to go through security in the same manner as the rest of us peons. In other words, that the laws be applied to the lawmakers also. No special privileges to the “more equals” among us.
Require private flyers to also go through the TSA security also.
Any bets that Obama’s wife and daughters will never go through a porno-scanner nor get the “new and improved” pat downs?
November 17, 2010, 1:39 pmChris Travers says:
Make it a requirement to enter the White House (no exceptions given).
Seriously, the ability to require businesses to hand over papers (business records) without a warrant undermines one of the elements of the fourth amendment. Now, we have intrusive searches of persons without warrants.
We are a stone’s throw from warrantless searches of homes.
November 17, 2010, 2:00 pmPoul says:
the numbers are in:
one in 20 millions x-ray scans will cause a fatal cancer – http://www.public.asu.edu/~atppr/bodyscan.html
there are about 800 millions airline passengers in usa every year – http://www.public.asu.edu/~atppr/bodyscan.html
assuming that 20% of them are scanned (as per current practice), about 8 people will die every year as a result of TSA “safe” x-ray scanning procedures. (i am not accountring for frequent flyers).
do you want to be one of those 8?
November 17, 2010, 3:09 pmPoul says:
ben gurion handles about 1.5-2 million passengers per year, o’hare – about 60 millions. so simply by hiring 40 times more screeners, the travel in o’hare can be as pleasant as in ben gurion. it’s not that much – there are about dozen or so agents at any given moment in ben gurion. they are young boys and girls actually, recently after few years of mandatory military service. the training is not that difficult, i’ve been told.
but, there is no opportunity for graft and bureaucratic expansion, so it will never happen.
November 17, 2010, 3:22 pmDennis says:
I don’t know that the numbers ARE in. We have no way of judging the uality of the article. It may be rock solid, but there are any number of alarmist articles out there, from solid-sounding sources.
November 17, 2010, 3:29 pmDennis says:
Dammit! You’re starting to sound like me! :-)
November 17, 2010, 3:34 pmMichael says:
” and that it is reasonable so long as it it is not overly invasive given the threat that it is designed to deter and stop.”
What is not “overly invasive” if not millions of searches costing millions of dollars to prevent an incident which doesn’t equal the impact of one day on America’s highways and has not actually been demonstrated to exist (one incident, ten years ago, is hardly a flood of threats)? All else we have in the way of potential evidence is one person who failed to set his shoes on fire, one who failed to set his underwear on fire, and one who failed to make an eplosive in a lav. This hardly seems like much to worry about, except, of course, for the bed-wetters among us.
November 17, 2010, 4:00 pmDiamondback says:
1. Say a suspect was detained and found to be hiding explosive materials in his/her anal cavity, would that then make cavity searches of all fliers “reasonable and necessary?”
2. Since Israel has a very effective system that has worked splendidly for decades and they DO NOT submit their citizenry to such intrusive techniques, how can the current TSA techniques be considered “reasonable” and “necessary”?
Just curious.
Thanks.
November 17, 2010, 4:42 pmMartha says:
“Never” is a lot longer than 2012 or 2016. On the other hand, they’ll be pretty wealthy so maybe they’ll be able to avoid TSA screens as wealthy folk do now.
@ChrisTravers, I love the idea of requiring these screens at the White House . . . add congressional office bldgs too.
November 17, 2010, 4:43 pmDiamondback says:
We ALREADY HAVE warrantless searches of homes, cars and persons!!
All they have to do is claim there are “exigent” circumstances (regardless of whether there are or not. Kinda like the “didn’t use turn signal” BS to make an otherwise illegal traffic stop, only worse!)
November 17, 2010, 4:48 pmChris Travers says:
Actually I am planning on printing up a paper next time I fly. It will be printed twice on an 8.5×11 sheet and cut. They will then be carried in my travel documents along with a cheap, ballpoint pen.
It will say something like:
Then if I decide the search is too intrusive, I ask them to sign and give them a copy to keep.
November 17, 2010, 5:08 pmAmanda says:
Debrah, believe it or not there were a bunch of silly old goats in the 1700s who were willing to die because they believed so strongly in things like “no taxation without representation”. And remember the final straw? It was a tax on a beverage. Is it really such a leap, then, to understand this much more personal outrage?
November 18, 2010, 1:13 amChris Travers says:
Another thought for folks interested in resisting these measures.
One could, as far as I can tell, opt out of the X-ray, and then equivocate for some time about whether to go through the pat down, taking up as much time and energy of the agents as possible. Asking questions like “do I have the right to refuse? Is this a seizure of my person? What if I don’t consent? Are there fines if I say ‘no?’ Can I think about this for a few minutes? What do you think the limits of this regarding the 4th Amendment are? Can you Constitutionally do a body cavity search on every passenger?”
November 18, 2010, 12:30 pmWhat should you be subjected to in order to fly on airplane? says:
[...] [...]
November 19, 2010, 10:52 amDan Weber says:
Extreme body odor isn’t an arrestable offense, yes?
November 19, 2010, 12:03 pmBrian Epps says:
I always thought the reasonableness standard requires a distinct reason to search that person. In this case, the TSA makes an intrusive (effective strip-search) search of all passengers because they may have a reason to search very few, but the use of those reasons is verboten. IANAL, but I don’t consider strip-searches of adults, never mind children, to be acceptable as administrative searches barring a specific reason to search that person.
November 20, 2010, 12:42 pmBrian Epps says:
I always take infowars with a pillar of salt.
November 20, 2010, 1:43 pmhoodaticus says:
Have you ever read the 9th amendment? There are no holes in the Bill of Rights. There are only holes in Supreme Court justices’ heads.
November 21, 2010, 9:59 pm