I came across this argument on an anti-TSA Facebook page I track. As you might expect, it has bothered me since it seems to be both consistent and persuasive. Here it is; I’ll dissect it below:
The constitution forbids the government from conducting non-consensual searches. If you appear at an airport, you are consenting to be searched. There simply is no constitutional issue. It’s no different than a member of the public entering a federal courthouse. If you don’t want to be searched, that’s fine, go somewhere else.
[T]hese searches of your person are something you are consenting to, making them de facto reasonable.
There are many ethical and moral issues relating to the manner in which the TSA and ICE do their business, and some legal ones as well. But constitutional? Sorry, it’s unconsented governmental searches that the constitution prohibits. If you get pulled over and a cop says “Mind if I look around in your car for weapons?” and you say “Sure go ahead” and they find drugs? No 4th amendment violation because you CONSENTED. That simple, really.
The argument’s simplicity seduces — it simply removes the issue from the 4th Amendment “unreasonable search” paradigm by saying you have volunteered to fly, therefore you elect to submit to the search, essentially no matter how egregious and invasive. If you don’t like the search, don’t fly. Of course, the proposition is a gloss on the “flying is a privilege” argument.
Let’s look closer.
First, the very first sentence mischaracterizes the 4th Amendment, in that nowhere does it say that “The constitution forbids the government from conducting non-consensual searches.”. It in fact says,
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.
So the Facebook author gets it wrong, since a non-consensual search conducted pursuant to a valid warrant is permitted. Furthermore, the Amendment does not preclude all searches in the absence of a warrant, just “unreasonable searches.” That phrase, of course, is the hook used by courts — ever since airport baggage X-ray examination and magnetometer scanning of individuals’ persons began — to justify security procedures as being not unreasonable in light of the degree of invasion of privacy and compromise of personal security measured against the evil sought to be prevented.
Second, however, leaving this mischaracterization of the 4th Amendment aside, the Facebook author goes on to say, “If you appear at an airport, you are consenting to be searched.” This statement appeals for its simplicity and the apparent quid pro quo: “If you come to the airport to catch a plane, you will not be permitted to board that plane until we search you, and if you object to the search we can forbid you to fly.”
Freedom to travel in the U.S. is a right derived from constitutional provisions and by virtue of various laws. Apologists for security at airports, and in particular for the new TSA scan-or-grope procedures, say that, while the right to travel may be guaranteed, the mode of travel is not. You do not have the right to fly; it is a privilege. The same may be said of driving, however; driving on public streets is a privilege, granted by issue of a driver’s license, and revocable upon due process. Except for temporary emergencies, access to public highways generally may not be denied.
It is well established that, absent a valid warrant, probable cause relating to a crime, or the owner’s or driver’s consent, police may not search or seize items from portions of a vehicle not in plain view. Consent my not be coerced. Consider the following:
Police set up a roadblock on an interstate highway entry ramp, stopping every car. Each driver is asked to consent to a search of his vehicle. If a driver refuses, the police confiscate the vehicle’s keys and tell the driver they will only return the keys once the driver consents to the search and the search is performed.
I believe no court in this country would uphold such a procedure, unless the police can establish they have probable cause to believe that evidence or contraband is located in each vehicle. In cases relating to vehicle searches, “probable cause” is the recurrent theme.
Isn’t the TSA scan-or-grope procedure exactly analogous to my hypothetical? Aren’t we told we will be denied the “keys” to the airplane unless we consent to a search (either virtual strip search or invasive physical pat down, or, in some cases, both)?
The “privilege” argument also fails for precisely the reason many argue is its primary underpinning: the ease and ubiquity of flying. Each successive mode of transportation after walking — ox-cart, horseback, sailing ship, stagecoach, steamship, railroad, car, and now propeller and jet aircraft — became ubiquitous because of its relative ease compared with what went before. None, however, occupied special status permitting authorities to deny it to any who could afford it, at least until now. None is more or less a “privileged” form of transportation.
Third, the Facebook author asserts that arrival at the airport implies consent. In point of fact, at least one appeals court has specifically stated that consent is implied at the point a passenger checks baggage, places items on the X-ray conveyor, or passes through the magnetometer. This is a minor point, but it focuses attention squarely upon whether the scan-or-grope procedures, since they exceed all prior levels of search intrusion, have now passed beyond reasonableness. If they have not — and this is a matter with which the courts now must grapple — it would appear that how far searches may go will only be precluded by their economic impact. In other words, if the TSA were to institute body cavity searches, even on a limited basis, the public might finally object and refuse to fly, bankrupting the airlines, aircraft manufacturers, and all the ancillary air service industries. Even now, people like me who previously accepted the intrusions of magnetometers and X-ray machines have said enough is enough, denying revenue to airlines, airport concessionaires, taxi drivers, etc. (Friend Dave Levingston pointed me to a post by nude model Kari Marie declaring she will no longer fly unless it is an emergency.)
In any case, an implication of consent does not remove the scan-or-grope procedures from 4th Amendment analysis — consent comes into play only once it is found that the procedure itself does not violate the 4th Amendment.
Searches like those at airports fall under the “special needs” search category. Law Enforcement Legal Update, by Robert Phillips, an online resource of citations to basic cases dealing with the subject says, “An exception to the search warrant requirement, as well as the need to even show any ‘individualized suspicion,’ is when a search is found to serve ‘special needs‘ beyond the need for normal law enforcement.” Furthermore, “The legality of a warrantless search under the ‘special needs‘ exception is determined by balancing (1) the need to search against (2) the constitutional intrusiveness of the search.”
This is the analysis that courts will be undertaking in the now-numerous lawsuits that have challenged the new TSA procedures. For myself, I believe that they exceed permissible constitutional bounds, and I will not subject myself to them, certainly not until a court rules, and perhaps not even if a court finds them reasonable.
Sometimes We Can Laugh Department
Remember my post on comparisons to the SS? Here are TSA ranks so you may properly address them as you pass through airport security:
Small Vignette Department
Recently read online: “[A German citizen reports] his sister who lives in Frankfurt won’t travel to the U.S. now because the new TSA procedures remind her too much of … East German border crossings.”
Police Accountability Department
An important development reported by “Photography is Not a Crime” on Pixiq: the Atlanta police department has settled a lawsuit stemming from an illegal police raid on a gay bar last year. The summary details many changes required of the department, many of them bringing previously illegal practices into constitutional compliance, including prohibiting “Atlanta police officers from interfering with the public’s right to take photographs and make video and audio recordings of police activity.”
I’ve stayed clear of the whole Wikileaks controversy, even as temperatures have risen and what appears to be obvious government retaliation has descended. (Not to mention cyberattacks by the Anonymous group supporting Julian Assange.)
Friend Jimmie of Pretty Girl Shooter sent me a link to the four part Wikileaks Documentary, however, that is good enough that I decided I should share it with you. Part 1 here; subsequent parts linked on the page at right.
(My own attitude, in case you’re interested: the government way over-classifies material. It’s the government’s responsibility to keep its secrets if it can. Short of information that may lead to deaths or injuries, disclosure of classified information — diplomatic cables or military information — may not be proscribed, nor the publishers prosecuted. The source of the material is another matter. As an historical note: during my Army service, I held a “Cosmic Top Secret” clearance, which at the time was about as high a clearance as one could hold in the the military, so I’m very, very familiar with government approaches to classification.)
Crossing the Atlantic Department
Began an interesting exercise last night: cataloging the various cruise opportunities for 2011 Transatlantic crossings. After all, if I won’t fly, these remain the only option. You can get there in comfort for less than the price of a first class airline ticket, and in some cases for prices competitive with full-price coach.
I found an amazing number of departure dates, with many departing Ft. Lauderdale or Miami, but a goodly number out of New York City for Southampton, England, on Cunard’s Queen Mary 2. Fifty-two eastbound cruises in all, from April through November, and fifty-one westbound, from May to December.
I had feared if we used this option, we’d need to stay in Europe for months (tough, right?). Instead, one can actually plan for as little as a week there — although the crossing takes at least a week itself.
Trips on the Queen Mary 2 are truly simply crossings. Other lines make a cruise out of it, stopping at Northern Atlantic ports on the way across, or places like the Canary Islands or Azores if going a southern route.
All of this gives me something to think about.
Snow Update Department
Our service finally got around to removing the snow last night — about 11 p.m. To give you some idea of the task’s magnitude, they cleared our driveway with a tracked front-loader with huge scoop shovel, picking up the snow and depositing it across the street. They will have to return in a day or two when the city plows actually plow our street to its full width, since that inevitably deposits a wall of snow at the foot of the driveway.
We need more than a simple January thaw to clear this mass of crystalline water.
From one of the best of “The Box” series.