Domesticating Airport Dragnet Searches

Two articles examining the legality of the airport screening regime so many have come to take for granted appear in the online supplement to The Northwestern University Law Review: Revisiting “Special Needs” Theory Via Airport Searches by Professor Alexander Reinert of Cardozo and The Bin Laden Exception, by Professor Erik Luna of Washington and Lee.

The Reinert article treats the judicial acceptance of the airport screening regime as a foregone conclusion, and labors to limit the fallout:

[T]he TSA’s new search regime is more difficult to square with fundamental Fourth Amendment principles than the FAA’s initial airport screening procedures. Therefore, precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime. Specifically, I argue here that if courts are to give the TSA’s new search regime constitutional approval, it must be limited to its justifying purpose—safe air travel—and it must be grounded in the special needs exception to warrantless and suspicionless searches. Making explicit what has been implicitly required by most of the Supreme Court’s special needs jurisprudence, I propose a special exclusionary rule for searches like those conducted by the TSA that will best limit the ex post utility of such searches to their ex ante justifications. Under my proposal, the use of evidence discovered as a result of mass suspicionless searches like the TSA’s screenings should be limited to prosecutions for offenses that relate to the asserted justifications for the search regime. This link between justification and permissible use is one novel way to limit the reach of a special needs justification for these airport searches. In a way, then, the TSA’s new search regime offers an opportunity to revise and revisit special needs jurisprudence to minimize the risk that the exception will ultimately swallow the Fourth Amendment’s traditional preference for searches based on warrants and individualized suspicion.

The Luna response is even more pessimistic about the vitality of the incredible shrinking 4th Amendment:

In effect, TSA agents may now search any and all items in one’s baggage, given the sweeping claim that explosives “may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs.” Moreover, evidence of an agent’s impermissible motive—for instance, searching a bag for contraband wholly unrelated to terrorist threats—will be ignored so long as the TSA’s “programmatic motive” is airline safety. …

In the end, I just wish everyone would be a bit more honest. What is at play here is not a previously recognized exception to the Fourth Amendment—consent, good faith, special needs, and so on—but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks. Let’s call it what it is: The Bin Laden Exception to the Constitution. If nothing else, putting a name to the systematic evasion of the nation’s most hallowed legal text might force some to face their own irrationality and question the wisdom of bending the Constitution, as well as spilling vast amounts of blood and treasure, all for the sake of one evil man and his outlaw organization.

Spotted via Pogo Was Right, On the Colloquy: The Fourth Amendment and Airport Screening Issues.

This entry was posted in Law: Criminal Law, Law: Right to Travel. Bookmark the permalink.

One Response to Domesticating Airport Dragnet Searches

  1. Jeff Pierce says:

    Professor Froomkin,

    As a co-founder of Freedom To Travel USA (, an organization founded by common citizens to fight the illegal and abusive TSA procedures, I applaud your update on this very important topic – for most Americans, the TSA represents the most accessible government organization that will trample their rights on a personal level. One could debate the Customs and Border Patrol rulings in the courts, but 675 million passengers on average will fly on US domestic flights this year.

    I read Professer Reinert’s expose and have some different conclusions. There is an INFORMATION KIT on our website which actually touches on some of his topics, although we are not lawyers. However, Professor Reinert’s analysis is somewhat akin to our position.

    Where I might disagree is on giving up the 4th Amendment rights concerning TSA searches which are strip searches or use “sexual assault pat downs” (as a victim who has so far filed 3 complaints with the TSA, I can attest to the nature of these unwanted gropings). The best lawsuit in existence based on a constitutional challenge has been brought forth by Jonathan Corbett, and I think if you take the time to read his appeal, you will find it to be well-done even though Jon is not a lawyer and is filing on his own.

    NOTE: The US State Dept. admitted that the failed “underwear bomber” was denied a Visa, but the “intelligence” community asked the State Dept to allow him on the plane. This is the case that catapulted the illegal and abusive TSA tactics….one year AFTER the failed attempt.

    Essentially, an Appeals Court just ruled that it is not a constitutional issue for a US citizen because it is now apparently okay to deny the right to sue in District Court, even though the TSA is using “secret orders” for which no one is aware of the order ahead of time nor can they read them. Without belaboring the point, while I do agree the Courts have abdicated all reasonable judicial conduct regarding the TSA, I would not give up and just try and get any “non-security evidence” to be disallowed.

    In US vs DAVIS (the TSA’s main legal reference for their new procedures), the Appeals Court in that case reaffirmed that only administrative search doctrine is valid for executing the airport searches, and they said it is “okay” (my word) if in the course of these searches other evidence of crimes turn up. I recall they cited a case or two.

    Even US vs DAVIS reaffirmed that “reasonableness” must be tested in the Courts; in US vs DAVIS, the actual case was found in favor of the defendant who had a handgun in his briefcase, so the search logic about using “only as invasive a search as is necessary with today’s technology” was tangential or irrelevant to the actual case! At any rate, no one has tested reasonableness of 21st century technology nor the reasonableness of forced touching of sexual organs. In a jury case, I think the TSA would be at a disadvantage.

    The other thing that has come out of the Court cases, as Professor Reinert discusses, is the Courts are very reluctant to hold back the TSA from doing anything it wants. In my opinion, and we discuss this in our INFORMATION KIT, it is very difficult to justify “reasonableness” based on public security concerns. For example, we actually had hijackings at 4 per month in the late 1960s and early 1970s. Today, the scanners would ONLY increase the detection of suicidal airline passengers with working non-metallic bombs on US flights – something previous search techniques (metal detectors) cannot detect.

    However, consider there have been zero fatalities by this class of passenger in the US for 50 YEARS. Quite simply, there is no legitimate threat. There is a “risk”, but not a legitimate “threat”. The only 2 known cases since 1997 (in 1997 a liquid bomb was used in Brazil, 1 person died, plane landed safely…and don’t ask me why the TSA waited until 2006 to reduce liquids…) were actual miserable failures and DID NOT have working non-metallic bombs despite 5 years to plan, test, and refine one.

    In EPIC vs DHS, the recent court case on scanners, the agency asserted the right to strip search passengers. Publically, the TSA has said they don’t “plan” to do vaginal or anal searches, but if the threat of smuggling working non-metallic bombs is credible, then clearly there is a gaping security “risk” so we have not decreased the threat by using scanners.

    Without being absurd, in the last Supreme Court session they had a case concerning whether jails can strip search people arrested for minor misdemeanors. One of the judges asked about using a “risk analysis” as a basis for allowing this. The TSA has done no “risk analysis”. My facts are incontrovertible and documented in our INFORMATION KIT.

    I would suggest the Supreme Court would be hard pressed to use the “risk” odds as a basis to limit the 4th Amendment. If so, there is absolutely no reason we couldn’t justify mayors using a civilian work force to do house searches for prohibited weapons (say, unlicensed handguns), as we know there are many cities with handgun homicides by illegal handguns…so we have a much higher risk that affects every one of us more directly.

    Professor Froomkin, from a legal perspective, I think you and others might find Jonathan Corbett’s case to be a good read. I have learned over the past 15 months that our Court system is the most hidden battleground over our rights, and just like any human endeavor, it is subject to personal prejudices.

    Ultimately, as the Courts continue to eviscerate the 4th amendment and other rights in general, it will likely only be through Presidential oversight of his/her agency, or Congress itself, that can fix this travesty.

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