Monday, July 18, 2011


Last Friday, the D.C. Circuit Court ruled on the petition by The Electronic Privacy Information Center (EPIC) regarding the decision by the Transportation Security Administration (TSA) to implement full-body scanners as a primary method of screening airline passengers at airport security checkpoints.

A copy of the opinion is available as a PDF file.

EPIC argued that the use of "advanced imaging technology" (AIT) constitutes a violation of the Fourth Amendment to the Constitution, which establishes 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.'"

The Circuit Court was not convinced by this argument, however, noting that "any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options... is least invasive" (17).

They acknowledge the controversy surrounding some of the patdowns ("some who have exercised the right have complained that the resulting patdown was unnecessarily aggressive" [4]), but this issue was obviously not part of the case at hand.

I can't help but think that the judges probably all heaved quite a sigh of relief, given the recent incident in which a TSA agent was groped by a potential passenger.

Quite the little free-for-all at the airports lately, it seems.

Meanwhile, I have been stuck in airports for hours on end and no one has ever attempted to grope me or to grope anyone else around me--whether in an official or an unofficial capacity.

The most exciting thing that ever happened to me was when I had a scathing case of pink-eye when I boarded an airport shuttle in Montreal at 6 a.m. (swimming in a hotel pool is not all it's cracked up to be).

By the time I boarded my flight to Philly at 3 o'clock THE NEXT MORNING, it had cleared up.

But I digress.  The opinion is quite interesting, because the judges ruled that the AIT screenings do not violate the Fourth Amendment.  As they note, "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" (16).

The standard of whether an administrative search is "reasonable" "is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests" (United States v. Knights, 534 U.S. 112, 118-119, 2001, qtd. on pg. 17).

The ruling in EPIC v. The U.S. Dept. of Homeland Security argues that, in airport screenings, the "balance clearly favors the Government" (17).

Although many believe that a warrant is always required under the Fourth Amendment--and that is certainly the case in most instances--there are carefully crafted exceptions, and the standards that people assume constitute what is "reasonable" may not be what we would expect.

Although law enforcement cannot gather fingerprints from free individuals without probable cause, the State has the right to obtain fingerprints during "booking," even though the person being booked is only accused of a crime and not necessarily guilty.

Similarly, although a warrant based on probable cause is usually required to obtain a blood sample from a free individual, the absence of such a warrant does not necessarily imply that the person's Fourth Amendment rights have been violated.

The Supreme Court has identified the drawing of blood as a minimally invasive search.  Likewise, the Court has upheld random, suspicionless drug screenings in schools.  Sobriety checkpoints--which motorists can avoid, if they choose--are also an exception to the Fourth Amendment.  You can be stopped and briefly questioned at these checkpoints, but additional screening requires further justification (in the form of individualized suspicion).

The police cannot conduct "blanket searches" or go on a "fishing expedition"--these are typically considered "unreasonable" in the context of the Fourth Amendment--and are the legal safeguards against the formation of a police state.

What the ruling does argue, however, is that the TSA violated the Administrative Procedures Act, which "require[s] an agency to publish notice of a proposed rule in the Federal Register and to solicit and consider public comments upon its proposal" (7).

Although it might seem like a silly, bureaucratic law, the Administrative Procedures Act is actually quite important.  It requires that "agency rules, opinions, orders, records, and proceedings" be made public in the Federal Register prior to implementation, so that the general public can engage in "notice-and-comment" upon forms, rules, procedures, and any proposed changes.

The TSA argued that they didn't need to do this for several reasons (I won't go into all of them here: you can read the opinion for more details).  The D.C. Circuit Court argues, however, that "the change substantively affects the public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking" (8).

In fact, they argue that "few, if any regulatory procedures impose directly and significantly upon so many members of the public" (8-9).

Given the chance, the public would have expressed concern over the more widespread use of AIT as a primary mode of airport screening (from the initial 486 used at 78 airports to the additional 500 planned for late 2011) and, under the Administrative Procedures Act, the TSA is required to address that concern.

As the opinion argues, "the purpose of the APA would be disserved if an agency with a broad statutory command (here, to detect weapons) could avoid notice-and-comment rulemaking simply by promulgating a comparably broad regulation (here, requiring passengers to clear a checkpoint) and then invoking its power to interpret that statute and regulation in binding the public to a strict and specific set of obligations" (10).

In essence, you can't issue a sweeping regulation affecting all American citizens who travel by air, argue that you are not required to publish that regulation in the Federal Register for notice-and-comment by interpreting the APA to suit your own purposes, and then make the regulation binding upon the public at large.

Ultimately, it's a very interesting opinion.  On the one hand, it argues that the TSA's use of AIT in airport screenings does not violate the Fourth Amendment (thus, it is not unconstitutional), but on the other hand, it argues that the way in which the use of AIT screening was more broadly implemented at airports without public notification in the Federal Register violates procedure.

This may seem minor, but it isn't: it means that the TSA now has to do what it left undone and engage in notice-and-comment rulemaking by publishing its policies and procedures in the Federal Register.

This in turn creates the opportunity for the public to express its opinions and concerns about the use of AIT as a primary form of airport security screenings, and ultimately, the TSA is required by law to address those concerns.

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Ralph Waldo Emerson once wrote, "Life is short, but there is always time for courtesy."