Two students from Harvard Law School – my alma mater – have filed a lawsuit against the TSA.
I am looking for a copy of the complaint, but it appears that the students claim that the security use of scanners or pat-downs without reasonable suspicion or probable cause violates the Fourth Amendment.
I have a strong disagreement with one of the students, however. One of the students was quoted in Bloomberg saying:
"We honestly don't have much to say that would be of general interest, . . . So much has been said about this issue in the last month, and while we think we have some solid legal theories, they would be terribly boring to anyone but a lawyer."
As I mentioned elsewhere, I think that this challenge is not likely to be successful for two reasons:
- TSA is given wide latitude to conduct warrantless searches under the administrative search doctrine.
- Passengers consent to the search when they choose to fly commercially.
The more interesting question in the future will be whether the TSA decides to extend their authority to searches of the contents of electronic devices. Until that time, the TSA is likely solidly within its authority.
Putting aside the likely lack of success in court, I don't think most non-lawyers find this issue "terribly boring." Speaking personally, I have worked hard to make Fourth amendment issues accessible to non-lawyers. My experience is that most people find the issue of cell phone searches and GPS tracking interesting because it impacts their lives. The same is true with TSA screenings – wiretaps of suspected terrorists overseas is abstract. Airports screenings is a common occurrence.
This is one of those "teachable moments" for lawyers – instead of denigrating the issue as "terribly boring" to non-lawyers, we should be grabbing the opportunity to explain why these issues touch everyone's lives.