[tptacek]

No they're not. The Supreme Court has repeatedly upheld an exemption for searches in the context of airport security under the doctrine of administrative searches, where the state's legitimate interest overrides the cost (to individuals) of the search, and where no one person is singled out by the searches.

Your argument doesn't even follow logically, as all the 4th Amendment requires is that searches be "reasonable", and "reasonable" is obviously subjective. It's a right practically tailor made for adjudication by the Supreme Court.

Given that bags have been subject to search for decades prior to "pat-down" or "custody" searches, and that it's hard to think of a more invasive search than one that allows officers to rifle through your personal luggage, I don't think Constitutionality is the issue here. We should simply pass a federal law restricting the TSA's ability to electronically strip search or invasively grope passengers.

I'm just as disgusted by airport electronic strip searches as you are, but we shouldn't using sure-loser arguments against them.

[rplst8]

I would stipulate (using statistics) that the threat of harm in airports and on airplanes is very very low. Therefore, the searches ARE unreasonable.

What "threat" are we defending ourselves against?

I also stipulate that removal of the security protocols would NOT lead to more hijackings or random murders on aircraft. It's specifically because of the fact that certain places are "weapon free" zones that they are targeted by criminal malfeasance. Knowing that most if not all of your opponents are unarmed is a HUGE tactical advantage.

The problem is that everyone believes they have a right to be defended by someone else. You of course don't have to defend yourself, but your defense is truly your own business.

This is not to say that acts of offense or even attempts at offense shouldn't be punished. We do have a right to justice, and simply put, that is all.

[rayiner]

Spot-on. I think people tend to just read the word "unreasonable" out of the text, because it's a wiggle-word. But it's not the Supreme Court that put that word in there, it was the framers. And the framers did so knowing that "reasonable" is a signal word inviting judicial line-drawing.

[jpxxx]

I'm very specifically talking about custody searches, not pat-downs or "enhanced pat-downs" (an imaginary term created by the TSA's marketing team).

Anyway, to the best of my knowledge, there has been no Supreme court ruling on the constitutionality of any of these techniques in the context of airport security. I'm glad to be proven wrong.

The most relevant ruling I know of was from a half century ago and it wasn't the Supreme Court talking. United States v. Edwards, 498 F.2d 496, 500 (2d Cir.1974)

[dalke]

Quoting from the DC Circuit opinion in "EPIC v. Department of Homeland Security":

"""As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an "administrative search" because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. See United States v. Aukai, 497 F.3d 955, 958–63 (9th Cir. 2007) (en banc) (passenger search at airport checkpoint); United States v. Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006) (Alito, J.) (same); United States v. Edwards, 498 F.2d 496, 499–501 (2d Cir. 1974) (Friendly, J.) (carry-on baggage search at airport); see also Illinois v. Lidster, 540 U.S. 419 (2004) (police set up checkpoint to obtain information about earlier crash); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint). An administrative search does not require individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 41, 47–48 (2000) (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports ... where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118-19 (2001) (internal quotation marks omitted)."""

The Edwards reference you mentioned is in there, but so are others. In "United States v. Aukai" (2007) the 9th Circuit said "We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are "conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings."

In United States v. Hartwell (3d Cir. 2006), para. 8 "We hold that the search was permissible under the administrative search doctrine. Cf. United States v. Marquez, 410 F.3d 612, 616 (9th Cir.2005) ("Airport screenings of passengers and their baggage constitute administrative searches and are subject to the limitations of the Fourth Amendment.").

These were all easy to find.

[jpxxx]

I appreciate your thoroughness. I fear I am not focusing my argument well.

Administrative search at airports is legal, yes. Consent is not required or relevant, yes. Bag checks and scans are mandated by law, yes. Magnetometer searches are protected by law, yes. Weapons searches are protected by law, yes. Carrying a meth pipe in your pocket is probably a bad idea, yes.

I am very specifically arguing that modern physical custody searches (aka "pat-downs") as performed by the TSA do not qualify under any Fourth Amendment exemptions. They have not been ruled as constitutionally reasonable upon by the SCOTUS, and that until they are, they are forbidden by the fourth amendment.

Administrative searches must be 'minimally intrusive' and 'escalat[e] in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search'. Custody searches, in my personal opinion, do not qualify as minimally intrusive. Prior to the TSA's inception they were only used in very restricted settings. Now they're considered commonplace.

[dalke]

The view that "They have not been ruled as constitutionally reasonable upon by the SCOTUS, and that until they are, they are forbidden by the fourth amendment." is incorrect.

Were it true then every single new law or administrative action (of the federal government) would need to be reviewed by the Supreme Court before it could be applied. Instead, we have the court system to address these problems after the fact. We assume that laws and policies are constitutional when put into place and use the court system to correct instances where they are not.

For the sake of discussion, let's switch to something similar. The shoe scans are a nuisance and are not effective. People dislike it even worse than the scanners and pat-downs. It takes time, which slows down the number of people who can be processed. Some people have balance or other problems, so it means there needs to be a chair during the line before screening. Others have religious or cultural aversion to putting socks or bare feet on a dirty ground, so many airports provide booties or paper slippers. This makes everything more complex.

The requirement that people must take their shoes off has not "been ruled as constitutionally reasonable upon by the SCOTUS." Therefore, under your viewpoint is it forbidden by the 4th amendment?

The view of the circuit courts, and implied view of the Supreme Court, seems to be that the pat-downs which you mention are reasonable under the 4th amendment, given the "degree to which it is needed for the promotion of legitimate governmental interests" and that it occurs in a place where "the need for such measures to ensure public safety can be particularly acute."

[jpxxx]

Yes, that is essentially my view. I do not believe the TSA's current procedures are constitutional. The court system has not corrected this instance of over-reach after ten years, and the TSA's policies continue to become more restrictive, intrusive, and degrading.

I do admit that declaring the TSA's current behavior as 'forbidden' is overzealous and legally inaccurate. I'm just an angry textbox and not a lawyer. :)

[dalke]

I agree with you. However, using false reasoning probably doesn't help. While it may help vent your frustrations, it may also make others thinks that your views are ungrounded in reality.

[tptacek]

Why would it be lawful for the TSA to search through your underwear, but not lawful for them to feel you up? Where would the Constitution be drawing that line?

The fact of the matter is that it's SCOTUS that sets the standards here, not the Constitution.

[jpxxx]

Correct. My point is that SCOTUS has not said word one about these standards.

"Constitutionally reasonable administrative searches" in the context of an airport are legal, per SCOTUS. Consent has nothing to do with it, that concept does not apply here.

But, critically, SCOTUS has never ruled on whether the current TSA techniques are constitutionally reasonable. The only thing for sure is that the 3rd says that they must be 'minimally intrusive' and 'escalat[e] in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search'.

For further reading: United States Vs. Aukui from the 9th http://caselaw.findlaw.com/us-9th-circuit/1265662.html

[tptacek]

Nobody will cheer more loudly than I will if SCOTUS holds that electronic strip searches cross the line from "reasonable" to "unreasonable", but I don't know of a credible constitutional law source that predicts that they will do that, so baldly asserting that these searches are prima facie unconstitutional is a losing argument.

The case you've cited here is one where the 9th circuit held TSA's searches to be reasonable.

[jpxxx]

No, this case I've cited specifically says that magnetometer wanding and a pat-down over a duration of 18 minutes in search of a suspected weapon is a constitutionally reasonable administrative search.

My beef is with mandatory -custody- searches, which are implemented as either electronic/radioactivity scans of the entire flesh and/or full physical inspections of the body. These were not in use prior to the TSA's inception and nobody has ruled on whether they are constitutionally reasonable or not.

[dalke]

Heartily agree. The Circuit Courts seem to be in agreement, and the Supreme Court has declined to review appeals on this topic which were sent to them. This suggests that there is no Constitutional issue here which needs a decision.

Or in other words - NYC passed a law prohibiting the sale of sugary drinks over 16 ounces in size. To the best of my knowledge, the Supreme Court has never made a decision on if that action is Constitutional. And I strongly doubt that it ever will. Does that mean the legality of the new law is under doubt? Absolutely not.

[mindslight]

> The fact of the matter is that it's SCOTUS that sets the standards here, not the Constitution.

Well duh. Because the Constitution is inanimate, due to actually just being paper and ink. Meanwhile, SCOTUS consists of living people with free will and the ability to walk around.

However, nothing about these facts implies that what the Sovereign Council of Nine says is consistent with the ideals that led to the creation of said document.

[philwelch]

It's also important to note that you consent to the search by choosing to travel by air in the United States.

[enjo]

That's such a bad argument. I do no such thing. However, the reality of my profession requires me to fly. So I "consent" only under considerable duress. The choice is literally "put food on the table" or submit to incredibly intrusive security.

That's not consent, that's coercion.

[danielweber]

There are good arguments against "automatic consent" but this isn't one of them.

You consent to lots of things by driving on public roads, yet many people's livelihoods depend on driving on public roads. It doesn't mean that the consent for driving wasn't given.

[jackpirate]

The choice is literally "put food on the table" or submit to incredibly intrusive security.

No it's not. You can quit and get a new job. If you can't immediately find a new job, you will be on unemployment and food stamps. You will literally still have food on the table.

Edit: by quit I meant don't get on the plane, resulting in being fired

[settrans]

Where would you be eligible for unemployment after voluntarily quitting?

[michaelfeathers]

If someone feels that they can tell me what I consent to, they do not understand the meaning of the word consent.

[tptacek]

You can not walk up to the security checkpoint at the airport. To see why this matters, imagine that the TSA could, as soon you bought a ticket, search you in your home. The police can actually do that, if they have a warrant.

[lambda]

There is a difference between "consent" and "putting up with because you want something else more."

I generally have a greater need to fly than to avoid being felt up. This does not mean I consent to being felt up. The fact that the Supreme Court mistakes this for consent bothers me greatly.

[philwelch]

That's like saying I consent to have the sandwich you made but I don't consent to give you money for it, therefore you the sandwich shop owner are robbing me. You analyze the cost-benefit and consent to the whole package. You can't pick and choose.

[lambda]

No, nothing like that. I do not have a constitutionally protected right to eat a sandwich. I do have one to be free from unreasonable search and seizure.

Furthermore, with the sandwich, there are alternatives available to me. I can choose to go somewhere else that serves cheaper sandwiches, or make my own. There are some places that I just cannot get to without flying; and some for which getting there would take so long as to be completely impractical, thereby cutting me off from a large swath of possible activity if I do not "consent" to being touched in the nether bits.

Their argument is like saying that by walking into a fraternity, a woman consents to being groped. Hey, maybe they even put up a sign saying "we grope women who enter here." That argument does not make it consent.

Furthermore, you are not able to remove your consent once you reach the head of the line. At may airports, they subject only some passengers to having nude photos taken of them by x-ray (or groping if you don't consent to the backscatter). But at the point when you get to the head of the line and find out if you're lucky, you are not able to leave in order to avoid the search; they have arrested people for trying to do so.

There are certain ways to coerce people to create an illusion of consent; but that shouldn't be confused with actual consent.

[awj]

Not in this case there isn't. You showing up at the airport and going through security is implied consent to the search, just like opening the door to them without explicitly denying consent is enough for police to legally enter your house.

[michaelfeathers]

That's merely because the concept of consent has become polluted.

Anyone who wants to know what I consent to has to ask me.

[flyinRyan]

>just like opening the door to them without explicitly denying consent is enough for police to legally enter your house.

That's another example of where the US fails on human rights.

[mikeash]

If this really were the doctrine under which these searches were instituted, wouldn't there have to be a situation where the search procedures are fixed at the point where you bought your ticket, and they can't spring surprises on you by changing procedures between purchase and travel? Maybe I'm being unreasonable, but if the idea is that you implicitly consent when you sign up, then it seems like they should not then be able to change what you consented to later.

[tptacek]

That's not the doctrine the searches fall under.

[mikeash]

So then what does it mean that "you consent to the search by choosing to travel by air in the United States"?

[tptacek]

I remember that consent/voluntarism being important to the lawfulness of airport searches, but I thought the big two elements of administrative search were (1) searches not being intended to collect evidence for criminal investigations and (2) officers not having discretion as to who to search.

[jpxxx]

Negatory. Consent is not relevant in the case of airports, per the 3rd and 9th circuit courts.

http://caselaw.findlaw.com/us-9th-circuit/1265662.html

[sneak]

http://articles.latimes.com/2011/dec/20/nation/la-na-terror-...

[darkarmani]

That's like saying you consent by leaving your house. I guess you also think the airlines consent to having the TSA search their customers? I'd love it if airlines could opt-out. Let the market decide who thinks it is a risk. They could charge more money for the privilege of flying unmolested.

[r00fus]

Ah, the clickwrap and EULA argument. I hated it back in the 90s when it was introduced.

[darkarmani]

What is the argument for searches when you decide to leave after entering the pat down area? It doesn't seem to be an administrative search if you decide to leave after entering the security area, because you are no longer going to board an aircraft.