November 17, 2010

Dear TSA: Please Dispense With The "Freedom Feel-Up"

I've been thinking more and more about the nudity scanners and genital gropes that airline passengers are being asked instructed by the government to endure if they want to travel by airplane.

First of all, let's start with the law.  In the case of United States v. Aukai (9th Cir. 2007) 497 F.3d 955 we get from an ideologically balanced panel of judge a detailed examination of exactly how far the TSA can go in requiring all passengers to submit to an "administrative search" before more intrusive searches can be implemented. In Aukai, the defendant went through the same sort of screening that we've all been used to for quite some time -- he walked through a "magnetometer" or metal detector and put his bags through an x-ray screening machine. The metal detector indicated the presence of metal, and the defendant denied having anything metal on his person. The TSA screener then ran a wand over the defendant, and it registered metal in the defendant's front pocket three times. A supervisor ran the back of his hand on the outside of the defendant's pocket, felt something, and asked the defendant to empty that pocket. When the defendant did so, it was revealed to be a meth pipe.* The critical passage:
Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose.”
So it was okay to require Aukai to go through a metal detector and run his bags through an X-ray machine; these are "reasonable" searches permitted under the Fourth Amendment. But the wanding, pat-down, and command to empty pockets was not justified until those less intrusive search methods raised a suspicion that there might be something dangerous in Aukai's pocket. It turned out to be evidence of Aukai's criminal stupidity, but of course the TSA officers would have had no way of knowing that from the metal detector devices.

Second, consider  Ken at Popehat's nice little thought experiment. Most people think they can distinguish packaging from content; is it true here? If something feels as though it's imposed on us from outside, would we resist it? But if it comes from the government, swaddled in a pretty assurance that "It's For Your Own Safety," why do we turn in to sheeple and quietly consent? I'm not out of line to say that most people have and will consent -- alarmingly, roughly four in five Americans polled support these screens although, as Nate Silver points out in the link, it's easier to support someone else's loss of dignity than your own.

Third, a look at how the Israelis do airport security. Notice how it is person-specific, not object-specific. Kevin Drum points out in that article that the Israelis make no bones about racially profiling airport users (not just passengers), and that we would be required to omit that portion of our own security screens because our Constitution is written differently than Israel's. Nevertheless, it seems to me that there are rather important lessons the Israelis could teach us which we are ignoring.

Fourth, speaking of Israelis, here's a gem from an Israeli security expert, which is to say, someone who has training in how to bomb airplanes: "I can overcome the body scanners with enough explosives to bring down a Boeing 747." Further evidence supporting the proposition that this is all a big, expensive, inconvenient act designed to make people feel better but which does not also materially enhance the reality of safety.

Fifth, a statement from a TSA official that the public must learn to tolerate Fourth Amendment violations in order to travel in the air. Perhaps the guy spoke inartfully, perhaps he knows full well what he was saying (admission between 2:30 and 2:40 in linked video).

Sixth, a few reasons why we should care about this. Most prominently, the government lies when it says that the images of naked people aren't stored and kept for later use and/or amusement of bored TSA workers looking to mock citizens at the airport. Let me quote a little bit more from Ken at Popehat, because he's done a better job than I of finding good links for good reasons not to trust the government with this sort of power over people whom it has no probable cause to think are committing any crime:
the TSA can’t distinguish between a thing and a picture of a thing, thinks that it has authority to investigate illicit cash (and believes that telling them it’s none of their business represents suspicious behavior), relies on junk science to “detect” danger, feels entitled to your unquestioning obedience (and tries to earn it not with competence but with, in effect, a also-ran muppet), and is vigilant against pressing dangers like Decepticons. Of course, if you recruit on pizza boxes, you’re not going to wind up with Elliot Ness. You’re going to get people who use the body scanners to make fun of people’s genitals, pretend to find cocaine in passengers’ luggage as a prank, steal from carry-ons, and generally act like badged choads. Oh, and sex offenders. Don’t forget the sex offenders. A security checkpoint is Walt Disney World for them.
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Consider this story from a groped rape survivor: ... Think she’s alone at being treated like that? Think she’s being over-sensitive? Think again. Oh, think again.
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Another addition: “Heads up, got a cutie for you.”
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And Another: Hate kids? Love kids more than currently legal? Either way, a career at TSA has you covered!
And still more: Really, who am I to criticize the brave men and women of the TSA, who are all that stands between us and the menacing terrorist snowglobes?
* * *
More: Sure sounds like sexual assault to me.

How much is enough before people will say, "Enough!" So to conclude this festival of links demonstrating just how far the TSA has gone, seventh let's recall the guy who refused to submit to one of these searches, gave up his flight, was released by the TSA into a crowd of people, and went home causing no security risk at all. Yeah, sure enough, for daring to defy the TSA's authoritaii, he's now subject to a civil suit from the government, and they're seriously considering actually going through with it. The fact that this is the guy who actually publicized the TSA's tactics and exposed them for the petty martinets that they are has nothing to do with the fact that they're suing him out of the thousands of people they could have sued. No, nothing at all.

The Founding Fathers wouldn't have put up with this. They'd have recognized it for what it was: the government abusing and exceeding its authority; they wouldn't have put up with what is, in effect, a General Warrant. At most, these kinds of scans and searches should be reserved for people whose behavior and the results of other kinds of appropriate and Constitutional searches raise specific flags and concerns. At best, maybe we ought to take a few lessons from our friends in Israel. El Al painfully learned its security lessons in the 1960's and hasn't experienced Major Asset Loss since then -- so how do they do it? One thing's for sure -- they don't worry about peoples' feelings or ameliorating commercial pressures on donors to political campaigns. They do what needs to be done, and they do it without looking at or feeling peoples' sexual organs.

* I thought meth pipes were made of glass, not metal, but I don't smoke meth so I'm probably not the best person to opine on such matters.


Maxwell James said...

I know this isn't your specialty, but a question for you: given that people in wheelchairs have no choice but to undergo the "enhanced pat down," how is this procedure not also in violation of the ADA?

Transplanted Lawyer said...

I know that the basic rule in ADA cases is one of "reasonable accomodation." Here again, we come across the word "reasonable," which is something we can contrast with its antonym, "unreasonable." So if the TSA is doing a "reasonable" search of a chair-bound passenger, I'd suggest that maybe the search is also "reasonable" from a disability accommodations perspective.

Sadly, the law does not always work out so congruently as this, so I must admit of the possibility that something "reasonable" for Fourth Amendment purposes may not be "reasonable" for ADA purposes.

Another thing to consider is that people who use wheelchairs are required to use the airline-provided chairs, which are presumably security screened before being used in the terminals. I presume that one of the reasons for this rule is that a wheelchair is an easy thing in which one might smuggle explosives or detonation devices; no one will notice if a wheelchair sets off a metal detector.

Maxwell James said...

Thanks. FWIW people can bring their own wheelchairs to most airports; they are checked in at the gate.