Why the TSA’s Search Procedures Are Unconstitutional

The TSA can claim the legal right to circumvent the Fourth Amendment on the basis of the 1973 case U.S.v. Davis where the Ninth Circuit Court of the United States provided the power for the federal government – or the airlines themselves – to search anyone whom they choose. Davis involved a man who was convicted of attempting to board a flight while carrying a concealed weapon. The weapon – a loaded revolver – was found inside the man’s briefcase by an airline employee during a search of the passenger’s carry-on luggage. The Ninth Circuit held that searches of passengers and their luggage – akin to the kinds of searches down today by the TSA – do not violate the Fourth Amendment. According to the Court, “searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.” The Court found that screening searches such as those conducted on Davis’ luggage in the case at hand – or by extension, pat down searches or the use of scanners by the TSA – are Constitutional.

[S]creening searches of airline passengers 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. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.

The Court laid down three main criteria that a screening search must satisfy in order to be Constitutional. These criteria are that “the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.” The heavy handed tactics of the TSA are likely to pass the Davis Test and to be upheld as constitutional by any federal court if the TSA’s methods are challenged given that the federal courts – especially the Supreme Court – have a strong tendency to defer to the legislative and federal branches of government in such matters.

However, it can be argued that current TSA methods satisfy none of the three criteria of the Davis Test. First, “current technology” must not be construed to refer to only the latest in technological gadgets such as advanced whole-body imaging scanners. “Technology” also refers to the latest in intelligence techniques. The state of the art when it comes to airport security intelligence techniques are those employed at airports in Israel. Few airline passengers in Israeli airports are frisked at all, and these airports contain no whole-body imaging scanners. Israeli airport security personnel scoff at the ridiculous exploits of the TSA. “Taking the bottle of water from the 87-year-old woman at JFK, you will never find an explosive material that is coming from bin Laden,” Shlomo Harnoy, head of the Sdema Group – an Israeli security consultancy that advises airports abroad – snarked. “You are concentrating on the wrong thing.” Instead of treating each and every passenger – whether a child or a feeble elderly person in a wheelchair – as the next Mohamed Atta, Israeli airport security techniques rely upon profiling. While most passengers at Israeli airports go through security without effort, some passengers are pulled aside and subjected to extensive searches and screening. According to Pini Shif – a founder of the security division at Ben Gurion International Airport outside Tel Aviv – an estimated “2 percent of passengers flying from the airport are subject to themore intensive screening.” Of course, use of the Israeli method would not be uncontroversial if the TSA were to employ such methods. For example, young men who appear to be of Arabian descent or appear to be dressed in traditional Muslim attire would likely receive greater scrutiny than elderly Hispanic women or middle-aged Black men. If not carried out with careful attention and great sensitivity, such “racial profiling” would be problematic. Nevertheless, there is no denying that such men do fit the typical profile for airplane hijackers. However, one cannot deny that such profiling is often done by law enforcement or that such profiling is often rational. When searching for members of the Mafia, Italian men are undoubtedly singled out. When searching for members of the Triads or the Yakuza, Asian men are undoubtedly singled out. When searching for members of White Supremacist groups, Caucasian men are undoubtedly singled out. When searching for members of street gangs such as the Bloods or Crips, Black men are undoubtedly singled out. And so on and so forth. The fact that a 9/11 type attack has not occurred in Israel attests to the success of the Israeli methods of airport security. Arabs – who make up about twenty percent of the Israeli population – are subjected to greater scrutiny in Israeli airports than Jewish passengers. However, the fact that such a small percentage of Israeli airline passengers are subjected to heightened scrutiny indicates that widespread racist profiling of Arab passengers in Israeli airports is not taking place.  

One may object that it would be impractical if not impossible for the United States to adopt Israeli-style security at its airports. For example, Homeland Security Secretary Janet “Big Sis” Napolitano has pointed out the great differences in size between the United States and Israel. The United States has airport traffic that is approximately 70 times greater than that of Israel and has 450 major airports while Israel has only one. There is no denying that if the TSA transitioned into using Israeli-style airport security measures that it would initially be expensive. However, naked body scanners are not exactly inexpensive. Perhaps no lobbying groups with ties to Washington run organizations that are able to train TSA officers the appropriate Israeli security intelligence techniques, but that is no excuse. With an annual budget of over $8 billion, the TSA can certainly find the money in its coffers in order to enact security methods that are clearly superior. Furthermore, the Patriot Act allows for what appears to be unlimited funding to fight the “War on Terrorism,” so the cost of better methods to fight terrorism can hardly be considered an obstacle.

  

The TSA also does not confine its searches of passengers in good faith to the goal of detecting potential hijackers. It will be argued below that the TSA engages in a sadistic campaign of abuse of travelers for the purpose of terrorizing the populace and “training” them to accept future intrusions and violations of their civil liberties. There is no good faith involved when infants and handicapped adults are treated like terrorists.

Finally, the TSA does not provide travelers with the option of avoiding screening by opting not to fly. In November of 2010, the TSA announced that it can fine individuals $11,000 for walking away from the screening process and deciding not to fly. The possibility of paying an $11,000 fine is hardly the freedom not to travel. In order to impose such a fine, an arrest would be required, and therefore, a search would be conducted incident to arrest. In essence, the TSA can prevent anyone from exercising the right not to travel that the Davis Test requires. Hence, the TSA’s screening procedures fail each prong of the Davis Test, and as such, these procedures violate the Fourth Amendment.