Fed Court Rejects Constitutional Challenge to TSA's Scanning

[snot]

From http://www.wired.com/threatlevel/2011/07/court-approves-body-scanners/ :

“The petitioners argue that using AIT for primary screening violates the Fourth Amendment because it is more invasive than is necessary to detect weapons or explosives,” the appeals court noted. “As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an ‘administrative search’ because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack.”

The court said that, whether an administrative search is unreasonable, is a balancing test on how much it intrudes upon an individual’s privacy, and how much that intrusion is needed for the promotion of “legitimate” government interests.

“That balance clearly favors the government here,” the court ruled 3-0. The court added that an “AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard explosives in liquid powder form.” The three-judge appellate panel did not address limited research suggesting that the machines might not detect explosives or even guns taped to a person’s body.

However, the appellate court, which is one stop from the Supreme Court, said that the Transportation Security Administration breached federal law in 2009 when it formally adopted the airport scanners as the “primary” method of screening. The judges said the TSA violated the Administrative Procedures Act for failing to have a 90-day public comment period, and ordered the agency to undertake one.

More at the link. I honestly don't think the Constitution is being interpreted correctly here. Among other things, I don't see why authorities couldn't claim virtually any and all indiscriminate, unreasonable searches are "‘administrative searches’ to protect the public . . . " Maybe someone else here can explain.

[LisaL]

1. I don't see why authorities couldn't set up these "administrative"

searches at other places as well. Coming to the mall near you?

[snot]

3. Exactly!

Also, again, among other arguments, you have a greater chance of being struck by lightening than of being killed in a terrorist attack; so the conclusion that indiscriminate, mass searches are a reasonable response to the threat seems very far-fetched to me.

[jberryhill]

7. Notice that the court referred to deterrence

There is a long history of airplane hi-jackings and attempted hi-jackings pre-dating 9/11. The odds are currently low, because it is difficult for a prospective hijacker to determine with sufficient confidence whether they can get a suitable weapon or destructive device aboard a plane.

Airport security checkpoints didn't just start ten years ago.

The same kinds of legal challenges were made when airports installed the metal detectors and carry-on x-ray machines.

I'm not really sure how many shopping malls have been, for decades, targets of specific events endangering the lives of hundreds of people, but maybe I've just missed all of those stories in the news. Because, if you bother to read the relevant line of cases, there can't be an administrative search absent a factually demonstrated threat commensurate with the proposed search.

Have there been a lot of people taking everyone in a shopping mall hostage?

[jberryhill]

6. That's unsurprising

Since you have steadfastly avoided attempting to understand the relevant legal framework, I guess you can imagine anything.

[snot]

8. You are referring to . . . ?

If you mean to imply I haven't researched the law, you're correct. I'd be glad to be educated. But from what I understand, it's a complex area of law and this particular issue is not yet settled, and won't be until the S. Ct. has addressed it. (And anyway, i.m.h.o., the S. Ct. and other conservatively-oriented courts have been taking a lot of wrong turns on Constitutional interpretation lately.)

Glad you mentioned sobriety checkpoints; I was wondering about that but wasn't sure what phrase to google. Wikipedia says:

Legality in the United States

The Fourth Amendment to the United States Constitution states that: “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.” At a sobriety checkpoint, drivers are necessarily stopped without reasonable suspicion, and may be tested summarily and without probable cause. Thus the Constitution would appear to prohibit people from being stopped without a search warrant or at least without probable cause that they have committed a crime; however, the warrant requirement only attaches should the search be unreasonable and the Supreme Court, as shown below, decided that such stops are not unreasonable under certain circumstances.

Driving under the Influence of alcohol is a special type of crime, as driving with a blood alcohol content (BAC) over a set limit is defined as the crime; it is not necessary to drive recklessly or cause an accident in order to be convicted. To determine BAC accurately, it is generally necessary for the driver to subject themselves to tests that are self incriminating, and drivers sometimes exercise their right against self incrimination to refuse these tests. To discourage this, some jurisdictions set the legal penalties for refusing a BAC test to equal or worse than those for a failing a BAC test. In other jurisdictions, the legal system may consider refusing the roadside alcohol breath test to be probable cause, allowing police to arrest the driver and conduct an involuntary BAC test. The Michigan Supreme Court had found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement.

Dissenting justices argued that the Constitution doesn’t provide exceptions. "That stopping every car might make it easier to prevent drunken driving...is an insufficient justification for abandoning the requirement of individualized suspicion", dissenting Justice Brennan insisted.

Chief Justice Rehnquist argued that an exception was justified because sobriety roadblocks were effective and necessary. On the other hand, dissenting Justice Stevens countered that "the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative."

Jurisdictions that allow sobriety checkpoints often carve out specific exceptions to their normal civil protections, in order to allow sobriety checkpoints. Although the U.S. Supreme Court has found sobriety checkpoints to be constitutionally permissible, ten states (Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming) have found that sobriety roadblocks violate their own state constitutions or have outlawed them. Two other states (Alaska and Montana) do not use checkpoints even though they have not made them illegal. <12>

It seems to me that the TSA scans and gropings are far more invasive.

[jberryhill]

9. They are more invasive, yes

Where the rubber meets the road here, and personally I couldn't predict an outcome with respect to specific techniques, is the test of matching the degree of invasiveness to the risk sought to be addressed.

Absolutely, sobriety checkpoints are less invasive. They are looking for indications of non-sobriety, which can be cursory to some extent. Look at the eyes, listen for slurred speech, smell for alcohol, ask "have you been drinking?" and then proceed with further checks if there is any indication.

The risk is that one drunk guy may kill himself or kill and harm a handful of others. Nonetheless, a lot of people get killed from drunk drivers, making it a serious general concern.

With airport security, the risk used to be that somebody with a weapon would commandeer the plane, divert the flight, take a bunch of people hostage, and, eventually, sort itself out the way that most hi-jackings did. The use of a metal detector and bag x-ray is, don't kid yourself, a search which implicates the fourth amendment just as much as anything else. The degree of invasiveness was also generally considered commensurate to the type and magnitude of risk.

The problem now is that the stakes of a hi-jacking are higher, and the inventiveness of known attacks is more elaborate - i.e. the shoe bomber, the underwear bomber, the liquid explosive scheme. Where the argument is in all of this is whether the TSA can justify the level of invasiveness against these particular known threats, and set that level to be high enough to ALSO have a deterrent effect against attempts.

But we were well past "probable cause" doctrine when the metal detectors were installed in the 1960's, which is why the emotion based arguments simply bleating "fourth amendment" do not really address the point where the TSA's argument stands or falls.

The other uphill slope in making the argument is that the TSA is presumed to have administrative competence in its area of statutory responsibility. So, it's not enough to suggest or simply handwave that the searches are "too invasive" relative to the threat, but that point needs to be demonstrated by fact-based reasoning to satisfy a "clear and convincing" threshold that the TSA is wrong - not simply a preponderance.

The APA finding in the decision is encouraging, though, since the court did recognize that the TSA can't simply change regulations without proper notice, comment and rulemaking standards being applied.

(but my post was in reply to someone who has never been able to advance the discussion to this level in the first place)

[DeSwiss]

2. The POLICE STATE justifies itself. (yawn) n/t

[SDuderstadt]

4. Told ya n/t

[jberryhill]

5. Sobriety Checkpoints Are Another Example

The point is that it is non-targeted.

What sort of scenario do you have in mind?

If a cop picks out YOU on a street for a search, that doesn't fit the limitations of an administrative search.

However, if police check the sobriety of every third car on some street on New Years Eve, that is a response to a specific demonstrated problem, and doesn't involve singling anyone out.