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How the new TSA “Security Theater” may violate the 4th Amendment

Saturday, November 27th, 2010

The new TSA backscatter x-ray machines — as well as the procedure surrounding them — may very well violate the 4th Amendment.

The TSA’s new backscatter x-ray machines are body scanners that read reflected radiation off of a scanned subject, a process presumably intended to replace metal detectors. The result of backscatter scans is an essentially nude x-ray “photograph”, which can be viewed (and, as some allege, saved) by TSA officials. The point of these scanners is to search airline passengers for weapons, explosives, and other contraband. If the passenger does not consent to this search, he is subjected to a full body (“enhanced”) pat-down which in many instances can involve a full strip search. Refusing both of these methods can result in a $11,000 fine. These procedures all contribute to what some pundits call the “security theater” of the TSA — a series of entirely useless but showy anti-terrorism measures that pretend to protect against risk that may not even exist.

The TSA contends that their backscatter x-ray machines are a much more efficient at finding weapons and other contraband, but this allegation is questionable at best. A recent German TV show (video available here) showed a man sneaking materials through the new scanning system with minimal effort. Science TV show co-host Adam Savage was able to sneak 12-inch razorblades through the system. According to the Electronic Privacy Information Center, the scanners are “unlawful, invasive, and ineffective.” Even assuming that the machines are effective, the “enhanced” pat-down measures that are required for passengers that refuse to use the backscatter machines are ineffective and would have easily missed the December “underwear bomb”. Some health groups even claim that the machines are physically dangerous to certain groups (such as the elderly) due to the use of radiation.

As a general rule, suspicion-less checkpoint searches (and seizures) are allowable where the court finds a reasonable balance between “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Illinois v. Lidster, 540 U.S. 419, 427 (2004) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).¬†As it is fairly undisputed that preventing air terrorism is a strong public interest, warrantless searches of the kind performed by the TSA in past years (involving metal detectors and the like) have generally been held acceptable. United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005). Among determinative factors in courts permitting such searches was the finding that the searches were “minimally invasive”, “escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search”. United States v. Hartwell, 436 F.3d 174, 180 (3d Cir. Pa. 2006).Because the TSA has increased the invasion of individual liberty with no tangible benefit to the public interest, the courts may very well have a strong reason to hold these new searches unconstitutional per the Brown v. Texas test.

As the TSA has radically changed its searching methodology, the legality of its methods is now in question. In Hartwell, then-Circuit Judge Alito added in a footnote that the court “[did] not purport to set the outer limits of intrusiveness in the airport context”. Hartwell, 436 F.3d at 180. The message sent by this footnote was clear: the court had no intentions of giving the TSA a blank check for any and all searches, and thus search methods (and perhaps individual searches themselves) will be reviewed de novo. Because the TSA has now adopted a security methodology that involves both nude “photographs” and “enhanced” pat-downs, there may very well be standing for the courts to re-examine the legality of TSA searches, as the court’s approval of the search in Hartwell is now antiquated and likely inapplicable to the TSA’s latest search methods. In other words, because the TSA has increased the invasion of individual liberty with no tangible benefit to the public interest, the courts may very well have a strong reason to hold these new searches unconstitutional per the Brown v. Texas test.

Even assuming the flaws of the new TSA methodology, some persist in arguing that the values of these procedures outweigh the costs. An argument can be made that airline passengers willingly subject themselves to TSA searches, as they could simply abstain from air travel if they objected to these searches. Ignoring the effectiveness of the backscatter machines entirely, some also argue that the “security theater” effect of the searches may effectively deter criminal activity even if the machines themselves are useless. Both of these arguments are flawed. Airline travel has been a mainstay of American travel ever since it was commercialized, and requiring Americans to forfeit their 4th Amendment rights to exercise their right to travel is ridiculous, not to mention unrealistic. Furthermore, perceived mental benefits from draconian search procedures do not justify government expenditures and rights violations. No matter how you look at it, the search procedures of the TSA are unjustified in terms of their expense and ineffectiveness, especially considering the rights they violate every day.

The courts may be the only way to motivate the TSA to change their methods. While National Opt-Out Day gained quite a bit of traction, it nonetheless has done very little to persuade the TSA or Congress. Unfortunately, but perhaps predictably, President Obama has adopted a passive “better safe than sorry” approach regarding the new procedures. While one might wish that such issues could be resolved through the political process rather than through litigation, it may ultimately take the force of the courts to save Americans from the TSA.

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