The Fourth Amendment: Alive, But on Life Support

It is no secret that some of our most sacred civil liberties have been under attack over the last several decades, and that those attacks have greatly accelerated in the last four years. Lovers of the Bill of Rights keep having to defend ideals that used to be basic, agreed-upon norms of our free civil society. No, the government can’t tell people (or groups of people) what political statements they can and can’t make. No, the government can’t compel people (or groups of people) to violate the tenets of their religion. No, the government cannot infringe upon the right to keep and bear arms. And no, the government cannot subject people to unreasonable searches and seizures.

The Fourth Amendment to the United States Constitution says that, “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.” Of course, there is plenty of ‘wiggle-room’ about what exactly that means. The courts have evaluated and ruled time and time again on what constitutes an ‘unreasonable’ search and what constitutes ‘probable cause.’ But the norms have been pretty well established at this point.

Consider the traffic stop. The police officer who pulls you over has every right to observe anything that is in plain sight in your car, and, if he observes something suspicious or possibly illegal, probable cause has been established and he may now perform a more invasive search. Statements that you make to the officer may also constitute probable cause. However, if nothing suspicious is visible in plain sight, and you don’t give the officer any reason to perform a deeper search, he can’t do it (unless you explicitly give him permission). And those are the restrictions that apply to the car . . . your person has even greater protection. Only if you are being detained as part of an investigation does it became ‘reasonable’ under the Fourth Amendment to perform a basic pat-down. Only if you are being arrested under suspicion of a crime do more invasive searches become ‘reasonable.’

And yet, for some reason, the government—particularly the Transportation Security Administration (TSA)—has declared that you or I wanting to board an airliner is somehow probable cause for a search that would be illegal in any other context unless you had been arrested under suspicion of a crime. Metal detectors are fine, as are any number of other non-invasive scans for weapons or explosives (including explosive-sniffing dogs and even back-scatter x-ray and millimeter-wave scanners that don’t display a nude image of the traveler). Only if one of those detection systems detects something suspicious is probable cause established for a more thorough search. Citizens have the right to perform legal acts—walking down the street, driving a car, or boarding an airplane—without being subjected to being photographed through their clothes.

Despite these well-established limitations, the TSA has regularly employed backscatter x-ray machines that display a nude image of the traveler to TSA agents . . . who, according to some reports, then laugh at and ridicule them. Travelers who choose not to subject themselves to these scans, either for moral reasons or because of concern about the scans’ negative health impacts, are subjected instead to an invasive pat-down that would be blatantly illegal anywhere else (again, unless the citizen had been formally detained or arrested). These pat-downs have been compared to sexual assaults by many of their victims. And all of this for no worse crime than wanting to get on an airliner, which, last I checked, wasn’t actually a crime at all.

Although the TSA wanted to blithely press ahead with the illegal scans, the U.S. Congress—with wide support from Republicans and Democrats alike—ordered that they either move to a ‘generic outline’ scan image (rather than an actual image of the traveler’s naked body) or retire the machines by June of this year. As such, the TSA has announced that the Rapiscan backscatter x-ray machines will be removed from service and replaced with machines that comply with the congressional mandate. It’s a small victory, especially since Congress shouldn’t have to specifically mandate that federal agencies comply with the Bill of Rights in the first place, and the illegal pat-down remains the only option for people who are still concerned about backscatter x-ray health impacts. But it’s nice to know that the Fourth Amendment isn’t dead, even if it is still on life support.

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.