Earlier today, Steven Frischling, author of the Flying with Fish blog over at Boarding Area, posted a piece entitled, How the TSA Legally Circumvents the Fourth Amendment. I am a big fan of Fish’s blog–he is a nuanced writer who carefully chooses each word he writes, avoiding emotional overtures that often cloud reality.
The TSA has always been a hot topic for him and his TSA detention earlier this week only added flames to the fire. But I profoundly disagree with his analysis today, his allegation that current TSA actions do not violate the Fourth Amendment and those who say otherwise are just confused, and I want to walk you through why I do.
First, let’s review the Fourth Amendment. It states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Now, let me summarize Fish’s argument:
A constant complaint from those opposed to the Transportation Security Administration’s (TSA) new ‘enhanced’ pat down searches is that these pat downs violate a traveler’s Fourth Amendment rights…
While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening.
In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”
U.S. vs Davis goes onto to state “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”
So far, so good. Though more recent caselaw, which I shall discuss below, clarifies U.S. v. Davis, it is true that airport security screenings are generally classified as valid administrative searches in terms of Fourth Amendment analysis.
But it’s Fish’s conclusions from the above caselaw that trouble me:
These laws give the Department of Homeland Security (DHS) and Transportation Security Administration significant legal latitude to perform the searches utilizing their current procedures without fear of violating the Fourth Amendment. Any attempt to oppose TSA searches citing the Fourth Amendment would be rebuffed unless done through the proper legal channels…
Presently the TSA has what appears to be a “blank check” in writing out what is “no more intrusive or intensive than necessary” and what is “confined in good faith to that purpose.” With the latitude the agency has been granted … not only does a legal precedent need to be set that challenges U.S. vs Davis, but further oversight of the TSA needs to be created by the House & Senate committees responsible for overseeing and funding the agency…
Misinformed yelling does nothing to help bring about the change that is necessary.
I can only assume that the last comment was directed at people like me, who have been arguing for months that the TSA’s full body scanners used as a primary screening device and enhanced pat-downs violate the Fourth Amendment. But as a lawyer in training, I know better than to make unfounded legal conclusions and my argument that the TSA actions violate the Fourth Amendment is based on careful legal research.
Just because the Ninth Circuit ruled that 1973 airport screening procedures were legal administrative searches does not mean that the TSA is not currently violating the Fourth Amendment. In fact, the same court addressed secondary screenings only three years ago.
In Aukai, the Ninth Circuit stated TSA screening procedures are “well-tailored to protect personal privacy escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search.” (United States v. Aukai, 497 F.3d 955 (2007)).
Employing AIT and enhanced pat-downs as primary screening mechanisms hardly seems to comport to that ruling.
That’s a very simple way of arguing that the administrative search doctrine does not cover manhandling and peeping by the TSA, but a look at how the U.S. Supreme Court has justified the administrative search doctrine further reveals the TSA is at odds with the Fourth Amendment.
In Burger, the Court laid out a three-prong test to determine whether a warrantless inspection was reasonable. A warrantless inspection will be deemed to be reasonable only so long as (1) a substantial government interest exists, (2) warrantless inspections are necessary to further the regulatory scheme, and (3) the statute authorizing the warrantless inspection serves as a constitutionally adequate substitute for a warrant. (New York v. Burger, 482 U.S. 691 (1987)).
I will concede the first prong of the test, but the second and third prongs are problematic to those who claim TSA pat-downs and full body scanners are lawful. Are these inspections necessary? Well, when the Government Accounting Office warns Congress that full body scanners haven’t been tested and may not be able to detect the very type of explosives material the machines were procured to detect, you have to wonder.
As for the third prong of the test, you could argue that the TSA’s organic act, which gives the agency broad and sweeping power to implement airport security, satisfies the requirement, but you might also argue that Congress never intended to allow U.S. citizens to be strip-searched or groped without probable cause in passing the act, even if the language might be construed that way by an overly broad reading of the text.
Fish’s final conclusion is correct: this issue is going to have to be resolved in court if Congress doesn’t step in first, but we don’t need to overturn U.S. v. Davis. The airport screening of 1973 is not remotely analogous to the screening of late 2010 and the Ninth Circuit, or whoever hears the challenge, only has to cite Aukai to argue that such obtrusive searches are only permitted after a passenger sets off a metal detector or arouses suspicion in some other way to give TSOs the probable cause required to conduct such an invasive search.