Wednesday, December 8, 2010

Law Review Article on Fourth Amendment and TSA Searches

More on the TSA.

A University of Mississippi Law School student has published an article in the Richmond Journal of Law and Technology on the constitutionality of the TSA use of full body scanners.

The article is titled "Bending Broken Rules: The Fourth Amendment Implication of Full-Body Scanners in Preflight Screening."

In the article, the student argues that "the danger of terrorist attacks alone provides insufficient justification under the Fourth Amendment for the wholesale application of full-body scanners. All methods of screening used by the TSA must strike a difficult balance of thwarting and deterring hijackings without violating the Fourth Amendment." The conclusion:

the TSA should not use full-body scanners unless a TSO has individualized suspicion that a passenger is carrying contraband that poses a threat to air security. . . . Considering the intrusiveness of full-body scans, courts should require probable cause as the level of individualized suspicion. Although requiring probable cause to conduct a full-body scan forecloses the use of fullbody scanners for suspicionless primary screening, it neither unduly hinders the TSA's counterterrorism efforts nor prevents the use of full-body devices. . . . Additionally, to comply with the Fourth Amendment, courts should require TSOs to exhaust less intrusive screening methods before resorting to a full-body scan. While no clear judicial mandate exists requiring that TSOs exhaust less intrusive means, courts consistently include the non-intrusiveness of magnetometers as a factor in determining the reasonable use of such devices for preflight searches. Reciprocally, the highly intrusive nature of full-body scans should render them unreasonable when conducted without individualized suspicion or before exhausting less intrusive measures.

I have written about the TSA procedures here and here. I think the article reaches a wrong conclusion. The TSA searches are permissible under the Fourth Amendment because they are an administrative action reasonably designed to counter a terrorism threat. These threats are real. The scanners are needed to prevent terrorists from hiding explosives in places where magnetometers and traditional TSA procedures cannot detect.

The TSA procedures may be the subject of a good policy debate: how much intrusion on the privacy of private citizens, and how much money should be spent for security are good policy questions and I am glad to see a vigorous debate on these issues. I just don't believe that the Fourth Amendment is implicated in that debate.

1 comment:

  1. It's illogical to say that the Fourth Amendment is not implicated when the screening is intended to produce fruits of criminal activity. (Certainly it is not said that the screening is for some health benefit or doctor's visit alternative).

    If the inherent nature of the searches is for criminal fruit with which a person can be charged than it is clearly a Fourth Amendment issue.

    Arguing otherwise makes an wicked intent obvious - that searches and seizures (ultimately, right to bodily integrity as property ownership) can be cast to the wind so long as you label the actions as "administrative" and apply it to everyone.