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 If there is no probable cause, or consent is not given or it is withdrawn, an American citizen may not be searched by an agent of the government constitutionally.
Continue Reading TSA Threats of Retaliation for Refusal of Intrusive Body Searches are Empty Rhetoric