Green Room

Are TSA Tactics Constitutional? An Advocacy Group Sues to Find Out

posted at 11:50 am on November 29, 2010 by

The Thanksgiving turkey by now has been picked clean, but if you thought the discussion of full-body scans and pat-downs was over, you’re sadly mistaken. One group, the Electronic Privacy Information Center (EPIC), has only begun to fight.

EPIC has filed a lawsuit that challenges the constitutionality of the advanced imaging body scanners and pat-downs currently used by the TSA. The suit maintains that these measure violate the Fourth Amendment, which prohibits unreasonable searches and seizures.

While the courts are likely to give greater latitude to the federal government in matters like this, where national security is at stake, in 2006 then-Judge Samuel Alito delivered an opinion on behalf of the U.S. Court of Appeals for the 3rd Circuit that established the terms “minimally intrusive” and “effective” as constitutional benchmarks for airport security measures. Alito supported the two-step procedure of screening passengers with walk-through magnetometers and, in the event they set off an alarm, with hand-held wands, adding that the TSA could proceed to a putative step 3 “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”

A year later, the U.S. Court of Appeals for the 9th Circuit refined the language, maintaining that

a particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.’

An argument could be made that current TSA practices fail the smell test imposed by both lower courts.

One particular potential stumbling block to upholding the constitutionality of the full-body scanners is the machines’ capacity in their present state to store “naked” images of passengers. As was discovered when EPIC initially filed its lawsuit earlier this year, the U.S. Marshals Service had saved more than 35,000 images from airport body scanners on a computer in an Orlando courthouse. If the court rules that machines can’t be considered “minimally intrusive” when they are capable of storing images, the TSA lawyers will have their work cut out for them.

Even the tide of public opinion appears to be shifting away from support for the TSA’s current tactics. A poll released by Zogby International last Tuesday found that 61% of Americans were opposed the use of full body scans and TSA pat downs. That number was significantly higher than one from an ABC poll conducted a few days earlier.

Related Articles

Cross-posted at Libertarian Examiner. Follow me on Twitter or join me at Facebook. You can reach me at [email protected] or by posting a comment below.

Recently in the Green Room:



Trackback URL


Maybe they should widen the test to traveling while Muslim. Probably be a whole lot more effective than feeling up granny and grandpa.

tarpon on November 29, 2010 at 12:06 PM

How about the fourth amendment? What about the equal protection clause? All getting lost in the shuffle…?

gryphon202 on November 29, 2010 at 12:19 PM

If a hand up the groin as part of a search WITHOUT SUSPICION is not unreasonable according to the 4th amendment, then the Constitution means nothing.

theCork on November 29, 2010 at 12:41 PM

If a hand up the groin as part of a search WITHOUT SUSPICION is not unreasonable according to the 4th amendment, then the Constitution means nothing.

theCork on November 29, 2010 at 12:41 PM

Next NewsBeast cover: “We’re all terrorist suspects now.”

gryphon202 on November 29, 2010 at 1:11 PM

If a hand up the groin as part of a search WITHOUT SUSPICION is not unreasonable according to the 4th amendment, then the Constitution means nothing.

theCork on November 29, 2010 at 12:41 PM

And Cork, I am being extremely nitpicky here bordering on lawyerly, but “reasonability” is not a constitutional question.

The fourth amendment reads, in its entirety, as follows:

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.

What this means is that you need a search warrant, but in order to get that, you need to know exactly what you’re looking for, and you have to convince the judge issuing the warrant that a crime was probably committed — all before the search itself is allowed to take place!

So were airport screenings constitutional before the TSA got their mitts on them? That’s not a question I feel comfortable to adress in this forum, but a line was crossed for me when assault and battery started taking place.

gryphon202 on November 29, 2010 at 1:24 PM

What’s more disturbing is that the ACLU (American Civil Liberties Union) stands mute in the face of such intrusion upon everyone’s civil rights. If I wanted to have an abortion in an airport, they’d offer me free legal services and the Lame Stream Media would be reporting on the blow stuck for freedom from intrusion upon a woman’s body, but let an extremely liberal administration start touching people’s junk, including women (ahem, ACLU), they have absolutely no “skin” in the game (pun intended).

College Prof on November 29, 2010 at 3:32 PM

Sorry, “blow struck”


College Prof on November 29, 2010 at 3:33 PM

Our Constitution provides a method of resolving an issue when the needs of the nation conflict with the constitution. It is called an admendment. The need is written into a bill to amend the constitution. It is then presented to the people to vote on it. When 3/4 of the states have agreed to the change, it amends the Constitution.

Of course the problem is that the people get to decide and vote. They know that we are not going to allow a change that lets the government take away our basic rights.

That leaves ignoring the constitution and relying on the courts to find a way to say they can take away our rights, which of course is the whole purpose of Obama trying to get far left liberals on the court. Keep in mind that socialism can not work under a republic form of government. It must have a centralized form of goverment, commonly known as a democracy, meaning that the central goverment, not a federal government, the states and the people, make the decisions. Under a socialist goverment there are no rights as we know them, unless the government finds them desirable.

Franklyn on November 29, 2010 at 4:00 PM

Franklyn on November 29, 2010 at 4:00 PM

Thanks for the civics 101 lesson, Franklyn. Does this mean that you do find the TSA protocols to be of dubious constitutionality?

gryphon202 on November 29, 2010 at 5:24 PM

Farm Dust Bad….Radiation Gooood


donabernathy on November 30, 2010 at 9:15 AM

HotAir — Politics, Culture, Media, 2017, Breaking News from a conservative viewpoint
Top Pick

“what happened that day was emblematic of a deeply troubling trend among progressives…”

“The jobs are still leaving. Nothing has stopped.”

Bad vendor. Bad! No cookie!

“The Corps is just starting to grapple with the issues the court has identified.”

“So you want me to sing my praises, is that what you’re saying?”

Why would we possibly want that?

“I mean he sold our country to The Russians.”

I could think of someone else you might want to ask about…

“You can ask a hundred people what hate speech is and you get a thousand different answers”

Trump: I never made any recordings of Comey

Allahpundit Jun 22, 2017 2:01 PM


Hackers stole private data from election databases

John Sexton Jun 22, 2017 1:21 PM

“90,000 records stolen by Russian state actors contained drivers license numbers”

Failure to protect the city

Big man on the Middle Eastern campus

Biased Americans see media as biased.

Tough times down on the liberal ranch

Will Nancy Pelosi survive this latest Dem disaster?

Andrew Malcolm Jun 22, 2017 8:41 AM

Eat quick, before it’s gone.

Slow your roll, boss

“I’m bothered by the lack of emerging evidence…”

FIrst look at the Senate health bill

John Sexton Jun 21, 2017 9:21 PM

“the Senate bill would go farther than the House version in its approach to cutting Medicaid spending.”

Divide and conquer?

“If we do nothing, more companies will back out and more people will lose coverage.”

You know, I may have cracked the case for you, guys

“They’re still running against her and still winning races.”

“…the suspect is from Quebec and has a Canadian passport.”

When the Left lost their way on immigration

Jazz Shaw Jun 21, 2017 2:41 PM

It wasn’t all that long ago, really

“I personally watched some of these students go up to Chief Brown, right up to her face, and call her all kinds of names, cursing at her.”

Did the Queen “nix” a Trump visit to London?

Jazz Shaw Jun 21, 2017 12:41 PM

More like wishful thinking on the American left

Sometimes it’s hard. This was the hardest part

Did the polls get the Handel/Ossoff race wrong?

Allahpundit Jun 21, 2017 11:21 AM


Physician, heal thyself

Maybe we’ll stay home and watch.