Lately I’ve been asking myself the following question more and more: If I go to the airport to fly somewhere and I’m asked to submit to a body scan or pat-down, should be okay with that or should I decline? Of course, if you decline, that means you can’t fly. Even so, my gut reaction is “no.” Why do I feel this way?
If I’m going to sacrifice the convenience of flying for a belief, it had better be based on something I’ve thought out carefully, not just based on a gut feeling. It seems to me that the reason behind my gut feeling is that what the TSA is doing seems like an unlawful search. Is it an unlawful search? Is it even a search?
Before I decide whether the TSA’s scans and pat-downs are unlawful searches, let’s look at what the Fourth Amendment of the Constitution says about unreasonable searches:
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.
Now, just so we know what we’re talking about, let’s look at something that is certainly an unlawful search. Let’s say the police imagine, for whatever reason, that you’re keeping a fugitive in your home. If the police come to your door without a warrant, break their way in, then go through your house looking for this fugitive, that’s an unlawful search according to the Fourth Amendment (even if they find the fugitive). Most people clearly recognize that sort of thing as an unlawful search.
Now let’s look at what the TSA is doing. First of all, is it even a search? It’s not like they’re coming into our homes and going through our stuff. When the TSA do their body scans, they’re trying to see if you’re hiding any weapons or explosives or whatever underneath your clothing. They’re looking for something. So yeah, that’s a search. If you refuse the body scan, the other option is a pat-down, which is the same search done in a different way.
The scans and pat-downs are, in fact, searches. Are they lawful or unlawful? Let’s look at the Fourth Amendment again, with some important parts in bold:
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.
It’s not just people’s houses that are protected by the Fourth Amendment. Their “persons,” or bodies, are protected, too. But the TSA searches might still be within the law. If I understand the Fourth Amendment correctly, a warrant is not always required (and the TSA certainly doesn’t have a warrant for each person it searches). A search can be lawfully done if there is probable cause. The TSA’s policy, as far as I understand, is to pick passengers for search at random. Therefore, anyone who flies is susceptible to search. Buying a plane ticket does not seem like probable cause for concealing weapons to me.
Given the facts that the TSA is searching passengers without warrants or probable causes, the only conclusion I can reasonably come to is that the TSA is performing unlawful searches.
So what does this mean for me? Should I submit to an unlawful search? It’s not a huge inconvenience to do so. It would potentially be, on the other hand, a huge inconvenience to decline. Imagine I flew to California without being chosen for a search, then I got chosen for a search on my way back to Michigan. What do I do if I decline? Rent a car at my own expense, forfeit my expensive plane ticket and miss work while I spend a week driving back?
But when making decisions like this, I don’t think you should start with thinking about what the side effects would be. Think about what’s right or wrong. If I’m okay with this unlawful search, why wouldn’t I be okay with being searched before I get on the subway in Chicago? It’s the same kind of search for the same reason. And if I’m okay with the subway search, why wouldn’t I be okay with random checks on the highway? What would it take for me to not be okay with it?
You have to draw the line somewhere and I think a good place to draw that line is with the Constitution. I won’t do anything that’s not Constitutional. So to answer my own question, no, I should not submit to the TSA’s searches. Hopefully I’ll stick with that decision when the time comes to act on it.
Then there are people who say, “Sure, maybe it’s not constitutional, I’d rather get a pat-down than sit on a plane full of guys who might have bombs in their shoes.” It seems that what you’re saying, then, is that these searches aren’t the funnest thing in the world, but they’re necessary. Fair enough. Why would you be okay with a stranger looking at you naked, or touching your genitals, if it weren’t necessary? If that’s the idea then I don’t understand why it only applies to planes. Even if an airline attack were considered by terrorists to be the most desirable kind of attack to carry out, an airline attack is certainly not the only kind of attack available to terrorists. In 2005, terrorists in London killed 52 people and injured 700 others by bombing a subway. So even if terrorists are so unimaginative that they never come up with any new ideas, they could still bomb a subway. If it’s necessary to screen passengers on all planes, why is it not necessary to screen passengers on all subways? Why is it not necessary to pull people over at random to make sure they aren’t driving explosives-filled vehicles like the one used in the Oklahoma City bombing in 1995? If we’re serious about terrorism, why are we only taking this half-measure by protecting planes but leaving other vulnerable targets open?
Of course, I don’t think it’s necessary to perform random searches on planes or anywhere else. When I walk down the street, I know I could be stabbed to death at any time by a mugger. Sadly, that’s something that happens regularly. But I don’t think we should randomly search people walking down the street to make sure they aren’t carrying knives. Does that mean I think we should stand by while terrorists plow our planes into the skyscrapers of every major city? Of course not. We should take measures against terrorism, but we should stay within the laws of the Constitution. For example, if someone is flying with a one-way ticket and no baggage (like the 9/11 attackers were), that person should be questioned.
Now, if anyone can tell me why the TSA’s searches are constitutional, or why they’re okay for any reason, I would love to hear about it. As it stands, I have the choice between cowardice and inconvenience. That’s not a very welcome decision, so it would be fantastic to learn that I could somehow submit to the TSA search in good conscience.
This is a question I’ve been asking myself lately too. Unfortunately, I may have to figure out an answer soon as I may be flying for a job interview soon.
Your comment about the (relatively) minor inconvenience of being scanned vs. the major inconvenience of not flying is the primary reason they’ve been able to keep jacking up security and making air travel worse and worse over the last decade. I have never heard, read or seen any numbers published about how many people they’re actually finding and stopping due to increased security – my guess is that it’s very low, unless you count how many housewives they’ve made throw away shampoo and nail clippers.
I’ve also never heard much of an explanation for the sudden need to see us naked or grope people, other than the so-called “underwear bomber,” but all that means is that the next step is some crazy will make a plastic bomb, jam it up his butt and try to use that – at which point, because of the one crazy butt-bomber (they’d better call him that – and yes, it’ll definitely be a Him) we’ll all have to subject to X-rays or a finger inspection.
It seems as though, in the wake of every sole incident, the TSA takes the approach of going crazy to fight against THAT. ONE. INCIDENT. But with a little luck you could still get a plastic box cutter onto a plane, which is the weapon they used to hijack the planes on 9/11 anyway.
I guess what I’m saying is, I have no idea – but before I get scanned or groped I make sure to chub myself up a bit. Got to at least keep it impressive.