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Are the New Airport Screening Procedures Constitutional?

by Professor Will Huhn on November 20, 2010

in Commerce Clause,Constitutional Law,Right to Privacy,Wilson Huhn

     Elizabeth Fuller of Yahoo News has posted an article asking Are TSA pat-downs and full-body scans unconstitutional?  Here are links to different opinions.  

     Fuller reports that Professor William Schroeder of Southern Illinois University says that the screening techniques are constitutional because  air travelers give their consent for the search and because these searches are not being conducted for the purpose of discovering evidence of a crime, but rather to ensure the safety of air passengers.  These points are accurate, but one question still remains: is it constitutional for the government to make consent to a search a necessary requirement before boarding a commercial aircraft?  

     Fuller also quotes Professor Susan Herman of Brooklyn Law School who believes that the technology is not effective enough in fighting terrorism to justify the use of scanners that may reveal the presence of an adult diaper or colostomy bag – medical conditions that a person has the right to keep private.  I think that argument is likely to fail in light of the fact that explosives could easily be hidden in a diaper or a colostomy bag.

     Finally, Fuller quotes Chris Calabrese of the American Civil Liberties Union who maintains that "the balance seems to be missing here."   Interestingly, the same sentiment was uttered by Representative John Duncan (R-TN) on Youtube: ("We need a little more balance and common sense on this"). 

     The position of the A.C.L.U. may be inferred from the headline on its webpage, "Homeland Security Wants to See You Naked."  Its page on Airport Security states:

The government should enact procedures that pose the least threat to our civil liberties and are also proven to be effective. Routine full body scanning, embarrassingly intimate pat-downs and racial profiling do not fit those criteria.

     The Electronic Privacy Information Center (EPIC) also opposes the use of full body scanners and has filed a suit to suspend their use.  

     The federal government undoubtedly has the authority to enact laws and develop policies requiring screening of air passengers under its power to regulate interstate commerce.  Do these screening techniques infringe upon a constitutional right?  The answer to that question depends upon how one understands the right in question.  Americans clearly have, in general, a constitutional right not to be subjected to searches of one's body.  On the other hand, we do not have a constitutional right to board a commercial aircraft without being searched.  If the courts were to find that these policies infringe upon a constitutional right then the government would have to prove that the techniques being used were necessary to achieve a compelling governmental interest.  Air safety is certainly a compelling govenmental interest; a closer question under strict scrutiny would be whether these screening techniques are "necessary," that is, both effective and no more intrusive than other feasible alternatives.  Under that standard the new screening techniques might be upheld, or they might be struck down, depending upon the nature of the proof offered by the government to justify the policy and the degree of deference that the courts would accord to the executive branch on the subject of public safety.

     If the right to board an aircraft without being searched is not a constitutional right then the persons or organizations challenging the policy would have to demonstrate that the screening techniques being used have no tendency to enhance air safety.  Under that standard the screening policies would certainly be upheld as constitutional.  

     Another way of challenging these screening techniques is not to assert that they are unconstitutional, but rather to claim that the federal government has not satisfied the procedural requirements necessary to enact them into law – that the federal agencies in charge of this decision have not adequately explained why the screening techniques should be implemented.  The courts might be more receptive to a challenge under the law of administrative procedure rather than the Constitution.

     It is becoming more and more difficult to preserve personal privacy.  Computers store all of our banking, investment, and credit card information.  Satellites and GPS technology easily track our movements.  Phone records are easily accessible, and as for medical records – well, it isn't necessary anymore for the government to break into Daniel Ellsberg's psychiatrist's office to get them.  We live in cities on top of each other, we work for huge conglomerates, we even search for dates and mates online.  Globalization and information technology have brought us into contact with and collision with diverse cultures, some of whose members view us as enemies.  Our civilization employs complex technologies to provide basic services such as electricity and water, and we travel in huge flying machines that can be brought down by the explosion of a few ounces of liquid or powder. 

     Our sense of modesty and personal privacy evolved over thousands of generations, but we have had only a few years to adjust to this corporate existence, a worldwide interdependent community of strangers where privacy is next to impossible.

     In her column Dear Airline, I'm Leaving You Megan McCardle of The Atlantic writes a "Dear John" letter to the airlines stating that she will not fly anymore because of the body scans:

If I have to let someone else see me naked in order to be with you–well, I'm just not that kinky. 

     McCardle's solution – drive, she said – might be the only alternative for those who wish to preserve a sense of personal privacy.


Scott November 20, 2010 at 10:36 am

I think Professor Schroeder is missing a few key points. Most importantly, the case of John Tyner, who is facing an $11,000 fine for not consenting to the search, raises the question of whether "consent" has any meaning when you're fined an exorbitant amount for not consenting. It's also worth noting that he apparently tried to choose an airport that did not have the new scanners according to the TSA website, only to find out as he was going through security that the TSA website was outdated. If you cannot plan ahead to avoid the searches, and you cannot leave once you find out that you will be searched, then "consent" is meaningless.

I also find it curious that Professor Schroeder makes such an important distinction between ensuring passenger safety and finding evidence of a crime. Exactly what threat to passenger safety does he have in mind that would not also be a crime?

Scott November 20, 2010 at 10:52 am

Sorry for the double-comment, but I also have to ask what distinguishes commercial aircraft from any other place that a private citizen might enter? If I have a constitutional right to not be subjected to bodily searches, but exceptions to that right can be carved out of the ever-expanding interstate commerce clause, what does my constitutional right even mean?

Do I have a constitutional right to avoid a bodily search when I enter a mall, or a public park, or my apartment complex? Or when I board a Greyhound bus, or a city bus? If I can refuse these searches on a constitutional basis, why are they different from a plane? And if I can't refuse these searches on a constitutional basis, does my constitutional right to avoid a bodily search have any meaning?

Mike November 20, 2010 at 11:28 am

I think its amazing how in 9 short years, a large portion of our society has gone from "search everyone on the plane", to "that's invasive".

larry d. November 20, 2010 at 3:12 pm

Are they necessary or effective? Seems like we're always looking for the attack they tried last time, while they've moved on to something else. How do the Israelis do it?

To be honest, the way this has come about in the wake of The Great Bureaucratic One's humiliating symbolic defeat at the polls, it feels more like a federal government that's angry with the citizenry than one that's trying to prevent an attack.

larry d. November 20, 2010 at 3:13 pm

Oh, I forgot. Black slaves underwent enhanced pat downs back in the day.

stoma bags December 2, 2010 at 12:19 pm

TSA pat-downs and full-body scans are important and needed to check everyone's safety, but agents should still know their limits.

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