The TSA conundrum: When security ugly and hype meets legal reality

Thrust to the forefront of late are incidents of TSA pat downs, verging on the brink of sexual harassment, amidst the cries that any such search of those purchasing airline tickets are having their 4th Amendment rights violated.

Again, hyperbole reels out of control, with issues made more tawdry, using headlines such as “A 12 year old girl forced to submit to being naked in a scanner”…. a bizarre interpretation at best considering a girl, traveling with her girlfriend and her parents, was picked to walk thru the scanner at Tampa Int’l Airport. Fully dressed, of course. Oh my… the trauma. No intrustive pat downs, no threats. Just a walk thru a scanner.

Considering the scanners differ only slightly in appearance that the current common detectors, one would have to wonder just what it was that supposedly made the girl so “scared”… all the media hype ratcheting up perhaps? Do you think the average 12 year old girl, dreaming about boyfriends, dances and other youthful fantasies, has been focusing on news and talk shows talking about scanners and intrusive body searches? Searches, I might add, that are random incidents when you consider the amount of people that fly daily in this nation. Truly folks, it’s one thing to be thoroughly annoyed and offended, but have we gotten to the point with this nonsense that the goal is now to strike fear into 12 year old girls’ hearts, merely to walk thru either a detector or scanner at an airport?

While I’m not one to volunteer for the “love pats” – as a few weird Congress types like to call them – and I don’t fly often enough to panic about absorbing an inordinate amount of radiation from what may uncalibrated scanners, there comes a time when we need to separate all this emotional hype about TSA from the legal realities. Just because so many wish it to be a violation of the 4th Amendment, doesn’t make it so.

Here’s the ugly truth… we’re a little late to the party to complain about the appetizers being cold. Airport security has been an ever-evolving issue for decades. Airport security is a federal mandate for all airport owners/operators that service commercial flights as a result of the Aviation and Transportation Act of 2001… a Nov 2001 bill that federalized airport security. Looking for a party to blame? Too bad… Altho the bill was sponsored by SC’s Dem Sen. Ernest Hollings, and co-sponsored by 30 other Senators… seven of them Republican… it passed by a unanimous Senate vote, and in the House 410-9, (with 14 not voting).

Prior to that, screenings were in place for both passengers and baggage, provided by private security corporations. Even today, as the small airport in Sanford, FL opts out of TSA screening and employs a TSA approved private contract firm to do the same, that alternative screener must follow the TSA guidelines.

In other words, the players have changed, but the game has not in Sanford, FL.

Since that time, Congress has used the same Act to pile on, affect both aviation fuels excise taxes, as well as sundry airport (and other) “improvement” projects. The Act, like so many others, has proven to be the springboard for further spending and appropriations, and further expansion of powers in the name of national security.

The foundation of S-1447 created the TSA, and putting them in charge of the implementation and training for airport security programs. As per any legislation, the devil comes in the details, and Title 49, Chapter XII, SUBCHAPTER A–ADMINISTRATIVE AND PROCEDURAL RULES were created… Voila, the mandated security of passenger screening at airport gates, TSA style, was born.

Airlines, forced by federal mandate to comply, accommodated the security mandate by adding a security fee to all airline tickets, and have been doing so since 2003. In short, purchase an airline ticket, with the security fees, and you have just “agreed” and been served notice that your “expectation of privacy” now includes mandatory TSA screening at the gates and, therefore, is reduced “expectations” any US citizen can have when opting to fly as transportation.

In other words, you have just voluntarily waived your 4th Amendment rights, as you understand them.

In a recent move, some airlines are extending foregiveness to passengers who didn’t read the “fine print” of their terms of agreement to fly, and issuing refunds or vouchers to those opposed to the scanning or pat down security options.

What may be helpful is to see where we’ve been, when assessing where we are today. Fact is commercial flight hasn’t been around all that long in the scheme of things. The first commercial flight was back in Florida, over the bay from Tampa to St. Pete at an altitude of 15 ft back in 1914. This especially gives me a grin since the Pinellas peninsula of Florida is my childhood and early adult home. The cost of that flight was $175 and, when adjusted to inflation, would cost $3600 today.

Flying picked up in the 1930s, but was mostly limited to the wealthy upper class with a good reason to fly, since train travel was more cost effective. But it wasn’t until the late 50s and early 60s that some of we “common folk” could actually splurge on a prop flight with the domestic US. I remember my first flight with my grandmother, from FL to OH… dressed in my Easter best, walking the tarmac to the plane, ascending the stairs, and fighting with the siblings during the flight to press our noses against the window to watch in fascination.

My how times have changed, yes? Thoughts of hijackings and terrorist attacks never crossed our minds then. But all that changed with the infamous D.B. Cooper, and his heist and parachute escape in 1971. (here’s the Wiki history version of Cooper’s $200K hijacking sky theft…) When considering liberty over security, it all went downhill from there.

Annie Wu, from MN’s public radio, interviewed David Leach, one of the nation’s first sky marshals under Nixon. It was then the conundrum of keeping innocent passengers safe to fly, and the entry of the criminal element began. Enter… the metal detectors, originally rigged from similar devices used by loggers.

But even then the spectre of the 4th Amendment and privacy infringements were on the mind at many. As Leach said then:

“The courts, very fortunately for us and for the traveling public, made the determination that yes, it was a violation of the fourth amendment, but it was acceptable to the courts with two provisos. One, that it be applied universally so there’s no chance of any discrimination, and two, that the search be limited to looking for weapons and explosives.”

“Applied universally” to avoid discrimination, and confined to “looking for weapons and explosives”. So much for help from the Supreme robed ones today, save in incidents of obvious out of the norm harassment. They have sanctioned non-discriminatory searches for decades with limitations based on the object of the search…. Weaponry to take over an airline. Note, this does not give any specific TSA agent a blanket approval to “grope”, and certainly skin on skin type searches have some legal avenue for recourse. But again, when you purchase an airline ticket, and pay for security fees, you have agreed to subject yourself to the search methods currently employed by the TSA at the gate entry. Voluntary submittal to a search waives a certain portion of your rights to be searched at all… leaving only abuses of those searches left to potential litigation.

Prior to 2001, most security measures had been implemented via private entities for the FAA for more common criminal intent… hijackings for theft, and even incorporated for the War on Drugs. But, in 1988, the Pan Am Lockerbie bomber killed over 270 people… and airport security entered yet another new era of preventative measures. Again, from the linked above “Savvy Traveler” public radio link on the history of airport security.

In response, the FAA began to screen portable computers and radios more carefully on flights from Europe and the Middle East. It also required that only bags accompanied by a passenger may board a plane. Still, it’s not easy to protect a thin aluminum aircraft flying at 30,000 feet, says Irish Flynn with the FAA.

Flynn: “And into those aircraft go hundreds of millions of people every year. And billions of objects go into those aircraft. And our challenge is to ensure that things that are dangerous, lethally dangerous, don’t go aboard those aircraft.”

Until recently, the FAA has usually taken steps to improve air safety as a reaction to a hijacking or a bombing. Today, the government says it’s planning ahead, for example, developing ways for airlines to deal with hijackers armed with chemical or biological weapons.

Post 911 and the Aviation and Transportation Act, subtle security measures via regulations and bills have passed, with nary a glance of the American public. For example, following Richard Reid’s 2001 shoe bombing attempt, removing shoes prior to entering the gates’ area was incorporated… again with little resistance from the American public.

When a British attempt at an airline bombing in 2006 involved liquid explosives, the max limit of liquids… plus their display in a single quart ziplock/plastic bag – became a new regulation. And most recently, when the Christmas bomber, Umar Farouk Abdulmutallab, attempted to smuggle a poorly designed bomb in his crotch, the US feds responded with the quest to install the backscatter x-ray scanners.

Welcome to today… a history of slowly encroaching search techniques that every American agrees to abide by when purchasing an airline ticket.

A bit… and I do qualify this with “a bit”… of SCOTUS rulings on the 4th Amendment rulings. The most pertinent is Katz vs the United States, 389 U. S. 347 (1967). This case, despite it’s controversial history of held/reversed opinion changes, forms the cornerstone of what constitutes an illegal search and seizure under the 4th Amendment. While the Petitioner’s own counsel was the one who raised the issue of whether there was an expectation of privacy in a phone booth to conduct what was, unquestionably, illegal activities, Justice Harlan is creditied for the dual test of privacy expectations, as considered by the High Court.

There are two types of expectations of privacy:

* A subjective expectation of privacy is an opinion of a person that a certain location or situation is private. These obviously vary greatly from person to person.

* An objective, legitimate or reasonable expectation of privacy is an expectation of privacy generally recognized by society.

Examples of places where a person has a reasonable expectation of privacy are person’s residence and public places which have been specifically provided by businesses or the public sector to ensure privacy, such as public restrooms, private portions of jailhouses,[1] or a phone booth.[2][3]

In general, one cannot have an expectation of privacy in public places, with the exceptions mentioned above. A well-known example is denial of privacy for garbage left for collection in a public place.[1]

While a person may have a subjective expectation of privacy in his car, it is not always an objective one, unlike a person’s home.[4]

The privacy laws of the United States include the notion of a person’s “open fields”; that is, places where a person’s possessions do not have an objective expectation of privacy.[5]

An example of subjective expectation of privacy may be found in the SCOTUS opinion on Kyllo v. US in 2001. Danny Lee Kyllo was convicted of growing marijuana in a triplex after law enforcement used thermal imaging to scan the building. The Ninth Circuit upheld Kyllo’s conviction, saying Kyllo had no expectation of privacy since he had done nothing to conceal the emanating heat from the grow lamp operation.

But the High Court, with opinion delivered by Scalia, reversed the decision:

While it may be difficult to refine the Katz test in some instances, in the case of the search of a home’s interior–the prototypical and hence most commonly litigated area of protected privacy–there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.

When considering this base rule of “privacy”, per SCOTUS, can anyone “subjectively” anticipate privacy when purchasing an airline ticket that charges a fee for mandated federal screening to enter the very public and secured gate area?

In a long shot, possibly… that is if you hope your case will fly using the intent to “conceal” exactly what the screeners are actually looking for. Using that approach, not having a bomb, plainly visible in plastic ziplocks, may actually make the 4th Amendment work in the favor of a terrorist. But highly unlikely (as you’ll see that didn’t work out so well for David Lee Moore below).

In the case of airport security, no subjective assumption of privacy can be had when you know, full well, that federal law requires screeners and scanners await you prior to the gate for a flight, and you’ve paid a fee to the airlines to cover the costs of this same screening. Such an avenue would be difficult to argue for innocent travelers who oppose the latest TSA screening methods.

Also on the “expectation of privacy” trail has been the cyber world, as exhibited by a Wired op-ed back in March of 2009. While not addressing airport security as the foundation, they do diss the Katz “expectation” test of privacy as a ruling that “…will rapidly leave us with no privacy at all.” Despite the disparity in subject matter, it’s a hard conclusion to argue.

The second “expectation” test – an “objective” expectation that is considered “reasonable” by society – is another hurdle. Certainly “society” – at large – expects the federal government to hunt for the bad guys, and expects to fly without fear of terrorists aboard. And, in fact, were stringent screening bypassed, and a terrorist incident did take place, what would society say to their elected officials? We’ve already seen the outrage when it was citizens, not the government, who stopped the Times Square bomber.

Others will be arguing that the pat downs are beyond what travelers agree to. Certainly, in the cases of obvious abuse (which you can litigate, as is our system), this is unquestionably true. But when you assume that TSA agents are merely doing the task they are appointed to do, and under their guidelines of operations, the legal avenues may be more limited.

Since SCOTUS precedents are never apples to apples, what about a few other specifics? Like, for example, the body search? So many erroneously separate their luggage and belongings from their person when it comes to 4th Amendment searches. Yet what is needed for law enforcment agents to conduct a search? According to the SCOTUS certiorari INRE VA vs David Lee Moore in 2008, enough probable cause.

David Moore, a suspected drug dealer, was arrested on driving with a suspended license. A body search turned up 16 grams of crack cocaine, and over $500 cash at the time. Since states can relax 4th Amendment search rights, but not make them more stringent, Moore should have been issued a citation under VA law.

Moore was charged with intent to distribute, but challenged the search as legal under the 4th Amendment. A bench court found him guilty. It was subsequently reversed and reinstated by sundry intermediate courts post in the appellate process, finally reaching the VA Supreme Court… who ruled that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incidents to citation, the arrest search violated the Fourth Amendment. However the request for certiorari was sent to the High Court who, after some dissent (and with some justices sitting out the consideration), did review the case.

While the High Court had reversed prior decisions for searches/4th Amendment violations as they related to state law, they did disagree with the VA Supremes INRE Moore, stating:

We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Is setting off a scanner enough to provoke “probable cause” for a search? Likely. Is refusal to be searched or scanned, combined with the demand for entry to the secure (or adjacent to secure tarmac areas) gate areas also enough to raise eyebrows?

Another case took a very similar path when two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick on a bus. After examining his ticket and ID, they asked for consent to search after a cursory “grab” at his canvas bag… advising him he had the right to refuse. He didn’t.

As even the liberal justice O’Connor notes in in the SCOTUS opinion on Florida v. Bostick,….“…the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.“

Refusing, as any traveler knows, remains the right of any citizen attempting to enter the airport gate area. You are given the choice of detectors, scanning (in airports where they are installed), or a physical search.

However refusing does not mean you are allowed to bypass the security without screening. With refusal come repercussions.

This leaves us where? Probably exactly the place where the terrorists wanted us to land… busy being proactive to their efforts and implementing politically correct measures that dance on the fringe of our beliefs, all in the name of national defense. It’s one rock and hard place to be… and somewhere out there, a jihadist is dancing in delight at our conundrum and hysteria.