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 If there is no probable cause, or consent is not given or it is withdrawn, an American citizen may not be searched by an agent of the government constitutionally.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.