“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . “ – United States Constitution, Fourth Amendment.
Before the September 11, 2001, terrorist attacks, airport security was a private matter. It was somewhat regulated by the government, but the scans themselves were performed by private companies under the auspices of the airlines. The requirement that you submit to a security screening to fly was essentially a private requirement established by a private company as a prerequisite for your utilizing that private company’s services. The Bill of Rights, which limits government authorities, simply doesn’t apply to what private companies do. Airport screeners had an incredible amount of leeway, as long as they didn’t assault you or otherwise break the law.
In the aftermath of 9/11, the U.S. federal government nationalized our transportation security system and established the Transportation Security Administration (TSA). TSA took over airport security across the country and, at least initially, little changed other than what company/organization name was on the screeners’ uniforms. There was an important legal change, however, that is too often overlooked. TSA screeners and screening procedures must now adhere to Constitutional limits on government authority. Airport screeners are not private entities representing private companies anymore; they are government agents that answer to you and me.
As private authorities representing their company interests, there was no legal requirement that they be ‘reasonable.’ They couldn’t grope you or beat you up or shoot you because of various laws against these things, but otherwise they could do pretty much whatever they wanted. As government authorities, however, they are Constitutionally bound to protect your right to be “secure in [your person] against . . . unreasonable searches and seizures.” This is not optional. We can’t decide that, since there are bad guys out there, the Fourth Amendment is hereby suspended for travelers. It doesn’t work like that.
Of course there is room for debate on what constitutes ‘reasonable,’ but as I’ve stated before I think it’s clear that we’re well into the realm of unreasonable now. I said back in May that, “We . . . can’t expect people to keep sacrificing in the name of security; at some point we have to draw the line. Are our airports really safer because you can’t meet your family and friends at the gate any more? Or because you can’t take your toenail clippers, pocket knives, or water bottles on the plane with you?”
Now, the TSA is installing millimeter wave and backscatter x-ray machines at airports across the U.S. that, essentially, take nude photos of you through your clothes.
Obviously there are very serious issues with these scans. They expose travelers to much more radiation than they would normally be exposed to, putting people who travel regularly at risk of medical side-effects. Because they are essentially equivalent to a strip search and violate principles of modesty, they are objectionable to religious conservatives including many Muslims, Orthodox Jews, Catholics, and others. While we are promised that photos are erased immediately, there are already documented cases of the photos being stored (and potentially distributed) long after scans were taken. Most fundamentally, considering that it is a government agency making the scans, they are a direct violation of the text and intent of the Fourth Amendment. They are the definition of an unreasonable search, and are an obvious violation of our right to be secure in our persons.
If you choose to opt-out from these scans for any of these reasons, you are instead subjected to a physical pat-down and groin-groping. While this avoids the potential medical side-effects of the scans and the risk of your nude photos being stored and disseminated, it’s still objectionable to religious conservatives and is still a violation of the Fourth Amendment. If you don’t have probable cause to believe I might have something illegal on my person, you do not have the right to search me. Probable cause would be something like a regular metal detector (which is ‘reasonable’) indicating I have a large hunk of metal on my person, or an explosive-sniffing dog alerting on me, or something like that. The fact that I want to fly to Albuquerque does not constitute probable cause for an invasive search.
If the airlines really want to do these scans, they have the right as private companies to require you to subject yourself to them in order to use their airline . . . but the airlines would need to operate the machines. The airlines would also not be able to compel your cooperation, nor would they have the right to grope you without consent, nor would they have the right to hold you against your will. The only thing they could do is run the scans, and turn you away if you choose not to participate. The government, however, has no authority to execute these kinds of searches whatsoever on travelers who have given them no probable cause.
I sympathize with the effort to keep air travel safe, and am willing to accept some additional reasonable inconvenience in order to stop Islamic terrorism in the skies. I am not, however, willing to sign away my Constitutional rights indefinitely—and especially not in the absence of any clearly-articulated need. The government does have increased national security authorities in times of war, but it does not have unlimited authorities. We cannot honestly claim to be in a standing national emergency for decades at a time. We are long-past the point of diminishing returns, where we exponentially increase the cost (in dollars and inconvenience) of our airport security apparatus for only very slight increases in actual security.
It’s time to draw our line in the sand. It’s gone too far.
Many travelers are joining together for a National Opt-Out Day on November 24, where they will opt-out of the nude scanner and subject themselves to the longer pat-down instead. The idea is to call attention to the madness, and hopefully it will work. Those of us who consider the entire scanning process both legally and morally objectionable, however, are in a very difficult position. We must submit to an illegal, unreasonable search that compromises the security (and dignity) of our person without probable cause, or we must now abstain from flying all-together.
I do not object to metal detectors. I do not object to x-ray scanning of baggage. I do not object to explosive-sniffing dogs and devices. I do, however, object to any further scanning of individuals or luggage when those reasonable scans have not established probable cause for a more invasive search. I object to the whole shoe-removal rigmarole. I object to treating every traveler by-default as if they are a terrorist. We are free citizens, and must be treated as such except in the most extraordinary of circumstances. The threat of Islamic terrorism warrants careful security procedures, but it does not warrant a blanket suspension of the Fourth Amendment for travelers.