TSA Threats of Retaliation for Refusal of Intrusive Body Searches are Empty Rhetoric

Posted on December 10, 2010 by Barbara E. Lichman, Ph.D., J.D.
The controversy over the invasive body scans and pat-downs by the Transportation Security Agency (TSA) seems to have temporarily blown over. However, with Christmas vacation on the way, they are certain to arise again. When they do, it is important that the public, and particularly that segment of the public with an interest in, or connection to, airports and aviation, be aware of the full scope of the constitutional and legal rights and restrictions governing these searches.

 

As a threshold matter, it should be understood that the searches by TSA, an agency of the United States government, are of the sort of governmental action covered by the Fourth Amendment to the United States Constitution. The Fourth Amendment contains a prohibition on “unreasonable search and seizure.” Under the case law that has developed over more than 200 years, a search is “reasonable” under only two circumstances: (1) if there is “probable cause” to believe a criminal act has been committed by the person being searched; or (2) absent such “probable cause,” if a party has given consent to the search. If there is no probable cause, or consent is not given or it is withdrawn, an American citizen may not be searched by an agent of the government constitutionally.
 

The government acknowledged this legal reality shortly after 9/11. Before 9/11, searches at airports were cursory activities if they occurred at all. When 9/11 occurred, and the government was unprepared and without a plan, private contractors for airports who were conducting searches during that period took it upon themselves to enhance the searches. Recognizing that they would not, for the most part, have probable cause for a random search, most airports posted signs at the entrance stating “Entry Into This Facility Constitutes Consent to Search.”

So far, so good. But that was before this new escalation that requires clothes-stripping body scans, or full, prison style pat-downs of guileless grandmothers who, because of physical disabilities, can’t go through body scans. The issue came to a head when Kenneth Tyner refused a body scan at Lindbergh Field in San Diego and cautioned a TSA agent that a pat-down was OK if it didn’t touch his “junk.”

At that point (if not before, according to the ACLU), TSA went off the legal rails. A supervisor was called, Tyner was escorted from the airport, and, as a climax, was threatened with a $10,000 fine for refusing the search, i.e., withdrawing his consent to search.

TSA’s threat was an entirely empty one, because not only had Mr. Tyner affirmatively withdrawn consent by agreeing to leave the building, but also withdrew any implied consent as well. Absent any claim by TSA of probable cause, Mr. Tyner, and anyone else who chooses to forego flight to avoid search, are fully within their constitutional rights, and cannot be intimidated by a governmental agent by groundless threats of fine or imprisonment into relinquishing those rights.

The moral of this story is that no American can be threatened or compelled into relinquishing his or her constitutional rights, or be punished for refusing to do so. TSA belatedly recognized this and withdrew its ill-advised threat. Don’t be concerned that, if you decline search and choose to change your plans, you will be subject to legal action. You won’t, because the right to make choices that free us from arbitrary governmental action is the fundament of the American system, and even TSA has the good sense to know that. Have a happy holiday.
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New TSA Regulations Are Arbitrary and Capricious

Posted on January 5, 2010 by Barbara E. Lichman, Ph.D., J.D.

The January 2, 2010 edition of the Los Angeles Times contained an op-ed piece by David Steinberg (not the comedian, but a screenwriter from Santa Monica).  The editorial beautifully capsulizes the irrationality of the Transportation Security Agency’s response to the recent attempted bombing of a Delta airliner bound for the United States from Amsterdam in which the TSA instituted regulations during an overnight session (when participants were apparently not fully awake).  Those regulations, governing incoming flights to the U.S. from certain foreign airports, include requiring that passengers remain locked in their seats during the last hour of flight, and removal of all pillows and blankets to overhead bins during the same period. 

In his editorial, Mr. Steinberg recounts his family’s odyssey home from a vacation in Aruba the day after the attempted bombing.  Their adventure included: (1) the baggage handler, designated as “frisker,” becoming embarrassed as he patted down Mr. Steinberg’s four year old son; (2) the same “frisker” apparently recognizing the absurdity of his act, gratefully passing on the frisk of Mr. Steinberg’s two year old daughter; and (3) Mr. Steinberg’s two year old screaming “bloody murder” as the flight attendant yanked the pillow from under her head.

Honestly, when does enough arbitrary and capricious regulation become enough?  First, the government mandates that passengers have to practically disrobe to get on a plane.  Now the government wants to regulate when passengers can go to the bathroom once they get there.  And for all that nonsense, the attempted bomber got on the plane to the United States, with explosives, not in his shoes, but in his underwear!  Does that mean passengers will now have to take off their underwear and put it through the scanner?

 

The answer is now, and has always been, the same: (1) better information coordination between responsible agencies; (2) full body scanners that take off our underwear for us; and (3) criminal (not racial) profiling.

The last two are controversial.  With respect to full body scanners, the American Civil Liberties Union and other civil liberties groups have taken the position that scanners are impermissibly intrusive.  However, the level of their intrusion should be weighed against existing regulations that require removal of shoes, belts and coats in public, and ultimately allow pat downs of innocent citizens, not by trained law enforcement, but by “baggage handlers” as in Mr. Steinberg’s case.

The last, profiling, may be the most difficult of all, because it smacks of the “bad old days” when law enforcement impermissibly profiled on the basis of race, ethnicity, and sometimes gender.  But that is not the kind of profiling being suggested here.  Criminal profiling is different in that it brings together many factors in a person’s past and present, including criminal history, recent travel, employment and, if relevant, ethnicity.  While we abhor profiling in its usual incarnation, it too must be weighed against the victimization of innocent travelers by ill considered, intrusive, and ultimately useless regulation.

In the end, Mr. Steinberg said it best - “How long are we going to tolerate increasingly preposterous and obviously useless rules in the name of security? . . . What if it takes six hours to get from the curb to the plane because next year’s lunatic tries to break the plane’s window with his bare skull and so the TSA decides every man, woman and child needs to be outfitted with padded headgear?  There’s got to be a better way.  A system that keeps us safe without impinging on the civil liberties we cherish.  A system whereby suspicious individuals get scrutinized, and everyone else gets to sleep on their own pillows.”

 
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