Are we losing our rights in the name of safety?

[BridgeTroll]

Ah... I see where you are going now. 

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

Looks like it depends on the the key word "unreasonable".  By yours and others definitions the entire process we were going through prior to these new TSA rules should be eliminated.  Searches at concerts and football games would also be unreasonable.  Perhaps you could enlighten me and others on the courts rulings regarding these types of searches.

Or do you just twist the constitution to suit your political needs?

Are you telling me you are a strict construtionalist on this issue but the many others we have discussed you are not?

[Cricket]

20 years from today we will all be ushered by the TSA single-file into an antechamber, stripped except for our boarding passes and passports, and piled into an Abu Ghraib mass of human indignity before we are allowed to take to the skies. Then we will all yearn for the days when a gloved hand caressed our testicles and titillated our breasts.

[uptowngirl]

So, I have a better chance of being shot or beaten to death by the crack dealers over on the otherside of the tracks from my house (they like to shoot off a round or two once in a while) and yet JSO does not feel the need to set up check points at the railroad tracks and search each and every person crossing that line? No pat downs, weapons check, ID checks....

[BridgeTroll]

by which you mean, right wing nativist and activist.

I am neither...  I am asking Chris to bring his legal expertise to bear regarding courts rulings regarding these types of searches.  They have been going on for quite some time now and have been supported by both the Bush administration and the Obama.  Pretty bipartisan don't you think?

[BridgeTroll]

It matters because these two opposites are apparently in agreement with regards to the "reasonableness" of these searches...

More info...
http://www.nap.edu/openbook.php?record_id=5116&page=34

The Fourth Amendment to the U.S. Constitution is the most obvious context in which the legality of airport security searches is determined. Like airport security searches, the role of the Fourth Amendment is to balance privacy and law enforcement. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures" by stipulating that any search conducted must be made on reasonable grounds. In addition to the reasonableness of the grounds, the courts commonly weigh three aspects of a search to determine whether the search is reasonable: the degree of intrusiveness of the search procedure; the magnitude and frequency of the threat; and the sufficiency of alternatives to conducting a search. Courts also consider the effectiveness of the search in reducing the threat and whether sufficient care has been taken to limit the scope of the search as much as possible, while still maintaining this effectiveness.

There is plenty more...

[BridgeTroll]

I am certainly NOT being disingenuous.  Up to this point... the laws and restrictions of preboarding airline searches HAS been constitutional.  Two opposing administrations and Congress have apparently agreed.  It is unclear... at least to me... where the Judicial branch is...

the courts commonly weigh three aspects of a search to determine whether the search is reasonable: the degree of intrusiveness of the search procedure; the magnitude and frequency of the threat; and the sufficiency of alternatives to conducting a search. Courts also consider the effectiveness of the search in reducing the threat and whether sufficient care has been taken to limit the scope of the search as much as possible, while still maintaining this effectiveness.

[Dog Walker]

"the degree of intrusiveness of the search procedure"  -- stripping me virtually naked and feeling my genitals is pretty intrusive.

"magnitude and frequency of the threat" -- bringing down and airliner with 150 people on board is pretty big magnitude.  Frequency - three attempts in ten years--meh!

"effectiveness of the search in reducing the threat" - I've never heard of anything explosive being found by any of the TSA searches.  Indeed, the only stories I've heard about effectiveness are the ones where the test "bombs" made it through all the screening in checked and carry-on luggage.

[Burn to Shine]

I was just about to ask the same question.  I'm happy to find this thread here.

Banned "flavored" cigarettes because they are "bad for the kids".  Now, it's the caffeinated alcohol that's killing America's youth.  

I got news for you, gov't - you banned my favorite cigarettes...and they just re-made them with another name and another package...also made them taste crappier but...I still buy them.  And so does anyone else who bought them before you intervened in our lives and our bodies.  Does Obama still smoke Marlboros???  Still legal, surprise, surprise.  I'd be willing to bet if there is a study - "the kids" smoke Marlboros before anything else.      

I'd like to know why it's the government's business what people put into their bodies?  Banning things only makes the appeal grow.  Probably creates underground crime rings that otherwise never existed.  When is it going to end???

And the next time I get groped at the airport - I guess you will see me on CNN as well.  I'm still feeling molested from the first time it happened and I'm terrified to even go to the airport because I feel like I'm being treated like a terrorist just for wanting to board a plane and fly an hour away.  It's outta control and does nothing to protect me, you, or Sister Sue in the nun habit getting felt up in the name of SAFETY.  

Eff.

[BridgeTroll]

This appears to be the ruling which gives TSA the authority do conduct these searches...

http://fourthamendment.com/blog/index.php?blog=1&title=airport_screening_searches_no_longer_con&more=1&c=1&tb=1&pb=1

Airport screening searches no longer considered a matter of implied consent; they are regulatory searches, and they are not without limits
Defendant went into the security line at the Honolulu airport, but it was noted on his boarding pass that he presented "No ID" to get through security. He was accordingly selected for secondary screening, although he was protesting that his flight was about to leave, which it was. A handheld wand went off on a front pants pocket three times, and he protested that he had nothing in his pocket. The TSA officer used the back of his hand to feel what might be setting off the alarm on the wand, and something was in there but he could not tell what it was. Defendant at that point asked to leave the airport because he changed his mind about flying. The TSA officer told him to empty his pockets, and a meth pipe was found in the front pocket. A further search of his person revealed meth. The Ninth Circuit held that airport searches no longer are dependent upon implied consent; they are now administrative searches because flying on an airplane in a post-9/11 world is now the same as a "highly regulated industry." Any "implied consent," thus, cannot be revoked once the passenger elects to enter the secure area. Such searches, however, are not limitless; they are limited by their justification: screening for terrorists. This search was reasonable under the circumstances. United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc):

Further...

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are "conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings." United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973); see also United States v. Hartwell, 436 F.3d 174, 178 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006); Marquez, 410 F.3d at 616. Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent, either ongoing consent or irrevocable implied consent.

The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by "electing not to fly" on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger's election to attempt entry into the secured area of an airport. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process.

To the extent our cases have predicated the reasonableness of an airport screening search upon either ongoing consent or irrevocable implied consent, they are overruled.

IV.

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. 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 [] [and] that it is confined in good faith to that purpose." Davis, 482 F.2d at 913. We conclude that the airport screening search of Aukai satisfied these requirements.

The search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. After passing through a magnetometer, Aukai was directed to secondary screening because his boarding pass was marked "No ID." Aukai then underwent a standard "wanding procedure." When the wand alarm sounded as the wand passed over Aukai's front right pants pocket, TSA Officer Misajon did not reach into Aukai's pocket or feel the outside of Aukai's pocket. Rather, Misajon asked Aukai if he had something in his pocket. When Aukai denied that there was anything in his pocket, Misajon repeated the wanding procedure. Only after the wand alarm again sounded and Aukai again denied having anything in his pocket did Misajon employ a more intrusive search procedure by feeling the outside of Aukai's pocket and determining that there was something in there.

[uptowngirl]

But that is not the case, this type of grope and feel is occurring for no reason at all! This dood had no ID and also flat out lied about having the phone in his pocket, a lot different than grabbing pregnant womens stomachs, and fondling the swedish flight attendants breasts. Come on Bridge, I expect a better response out of you.

[BridgeTroll]

Not a lawyer Uptown... not even sure I understand most of what was in the case.  The gist of it... and I may be wrong (again NOT a lawyer) is...

The Ninth Circuit held that airport searches no longer are dependent upon implied consent; they are now administrative searches because flying on an airplane in a post-9/11 world is now the same as a "highly regulated industry." Any "implied consent," thus, cannot be revoked once the passenger elects to enter the secure area. Such searches, however, are not limitless; they are limited by their justification: screening for terrorists. This search was reasonable under the circumstances.

This is for Chris... it is the caselaw findings for this case which it appears is the basis for TSA's authority.  Feel free to read through it but I would be interested in Chris's explanation of the ruling.  Namely...

airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft

http://caselaw.findlaw.com/us-9th-circuit/1265662.html

[BridgeTroll]

More from this ruling...

http://caselaw.findlaw.com/us-9th-circuit/1265662.html

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless.   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 [ ][and] that it is confined in good faith to that purpose.”

And...

The majority holds, and I agree, that once a passenger enters the secured area of an airport, the constitutionality of a screening search does not depend on consent.   That legal conclusion rests firmly on Supreme Court precedent and on the government's interest in ensuring the safety of passengers, airline personnel, and the general public.   For decades, nefarious individuals have tried to use commercial aircraft to further a personal or political agenda at the expense of those on board and on the ground.1  And the threat continues to exist that individuals, whether members of an organized group or not, may attempt to do the same.

[ChriswUfGator]

BT, the problem is that these new security measures have just been instituted in the last two weeks, and they are so disproportionately invasive compared to anything that came before them that none of the current case law really applies. We've gone from looking inside people's bags and running them through a metal detector to fondling their genitalia and subjecting them to nude electronic searches.

The logic behind the existing searches not being violative of the 4th Amendment was already pretty far stretched, to the point where I wonder whether it could cover the new procedures. I doubt it. People can always argue any point, but I think the vast majority of people in this country (including judges) are only just now finding out about the issue, and are likely to be horrified by it.

The reason, in part, that the prior procedures were authorized was because they were actually relatively reasonable. We're all used to walking through metal detectors, and though a minor annoyance, taking your shoes off for 2 minutes is hardly unreasonable either. This is a whole different ballgame. We're talking about government agents rubbing people's balls and conducting nude searches. The definition of reasonable has been stretched pretty far already, and this may well fall outside the limit.

I wonder whether the courts will even get a chance to decide? The public outrage is already spreading and is pretty intense. I would suspect that this issue will be dealt with on its own, and that TSA will have to revise its procedures, beforethis has a chance to play out. And the TSA, if they are actually dumb enough to sue that gentleman from San Diego, will almost certainly lose, because they clearly told him on camera that if he didn't leave they would arrest him, and later said they were going to sue him because he did leave. Which way did they want it? Give me a break.

[BridgeTroll]

OK... I see what you are saying.  The "reasonableness" test seems to be two pronged.  On one hand is the intrusiveness of the search which you have addressed.  On the other is...

airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft

[uptowngirl]

So in the case you cited, I am sure the majority of us here understand this guy was flat out lying about having a cell phone (while it was ringing!), I guess what I am saying is it is reasonable to treat a person in this position as suspect. Someone who chooses not to have their naked body scan viewed by some unknown TSA agent being the catalysts for a full body search and pat down is quite different, to me it does not pass the reasonableness test.