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Originally Posted by SATTSO
(Post 14375316)
No, not discomfort. It amazes me that people complain, partially, the WBIs are a violation of privacy - but seemingly have no problems forcing a captains auidence to listen to what they want to say. Yeah, I know, it's in public, so people have no expectations of privacy (except, strangly, considering the use of the WBI), but why would a critic of TSA seem to care if they force people who can't go anywhere to have to listen to what they have to say. Make all the claims you want, planning on specifically talking about a specific topic to people you know can't leave is nothing more than an ambush.
As a similiar example, last year I was on a subway and we were all packed in there. A man waited to the very end to enter and then waited till the doors closed, and only then started to spout to everyone the evils of this or that. So much for my conversation with my friend, huh? This guy had a right to speak - we were in public - but I had no right not to listen or walk away. Basically the same thing at the checkpoint. Show the real images in the same size and resolution as seen by machine operators. Provide verbal notice of the option to "OPT OUT". Provide details on the amount of radiation emitted by Backscatter. TSA has a captive audience yet does not provide those things needed by travelers. Why is it fair game for TSA to mislead its captive audience but not fair for me to speak up? |
Originally Posted by Boggie Dog
(Post 14376573)
Tell you what, when TSA gives the "captive" audience full disclosure then I will quiet down.
Show the real images in the same size and resolution as seen by machine operators. Provide verbal notice of the option to "OPT OUT". Provide details on the amount of radiation emitted by Backscatter. TSA has a captive audience yet does not provide those things needed by travelers. Why is it fair game for TSA to mislead its captive audience but not fair for me to speak up? |
Originally Posted by SATTSO
(Post 14375672)
Courts disagree with you concerning privacy and TSA. But I suspect that doesn't matter to you. ;)
And remember, just because a court hasn't ruled on something, doesn't mean that what TSA does is legal or right in all instances. |
Originally Posted by Superguy
(Post 14376692)
Show me where they've said that TSA gets an exemption in privacy. The only court cases I've seen with respect to airport security are ones like Aukai where the consent can't be revoked once given if something is found. Or that airport screening falls within a NARROW (does TSA get the meaning of that word) exemption of the 4th amendment for an administrative search. I have yet to see where you waive all your privacy rights to get on a plane.
And remember, just because a court hasn't ruled on something, doesn't mean that what TSA does is legal or right in all instances. What makes you think a Court hasn't ruled? Our courts have spoken regarding privacy at airport checkpoints. True, the rulings were on various issues, but that is true of many cases. Christian Hartwell v United States Specifically, from Hartwell, "people have a reasonable expectation of privacy in their persons or effects, all searches and seizures must be supported by a warrant, unless they fall into one of the exceptions of that requirement....thus we find that Hartwell experienced a single, warrantless search, which was initiated without individualized suspicion. Since it was not conducted pursuant to a warrant, the search must be granted in an exception to the warrant requirement". The court (US Court of Appeals for the 3rd Circut) then writes in their ruling that checkpoint searches are one of these exceptions. But there is even more to it than that; if your interested, read the case. And I can post more cases, if you wish. |
Originally Posted by SATTSO
(Post 14377195)
Your last statement, "just because a court hasn't ruled on something, doesn't mean that what TSA does..." interest me.
What makes you think a Court hasn't ruled? TSA's general position is it isn't illegal until it's ruled illegal by the court. They have a tendency to ignore the law and constitution and implement practices that may not past judicial muster. Take Bierfeldt and Fofana. Bierfeldt was hassled because Kip deemed large amount of cash to be contraband even though it wasn't a prohibited item or fell under TSA's scope of looking for WEI. If TSA had a healthy respect for the Constitution and the law, they never would have implemented such a regulation and Bierfeldt never would have happened. I know we disagree on Fofana. While you've said you thought the screener misapplied SOP, many (me included) believe that she never would have been looking for those passports and exceeded the scope if TSA hadn't been looking for those things to begin with. Our courts have spoken regarding privacy at airport checkpoints. True, the rulings were on various issues, but that is true of many cases. Christian Hartwell v United States Specifically, from Hartwell, "people have a reasonable expectation of privacy in their persons or effects, all searches and seizures must be supported by a warrant, unless they fall into one of the exceptions of that requirement....thus we find that Hartwell experienced a single, warrantless search, which was initiated without individualized suspicion. Since it was not conducted pursuant to a warrant, the search must be granted in an exception to the warrant requirement". The court (US Court of Appeals for the 3rd Circut) then writes in their ruling that checkpoint searches are one of these exceptions. But there is even more to it than that; if your interested, read the case. And I can post more cases, if you wish. The general gist is that the search was permissible because it was narrow in scope and that the drugs were found incident to the search based on an alarm from the WTMD. It was also based on consent to begin with. Never argued otherwise there. However, I think there are also some important things you missed. I pulled the decision from here. Privacy is still very much at the forefront of the judges' thinking, and TSA was never given a pass to do whatever it wants in this ruling. Hartwell's search at the airport checkpoint was justified by the administrative search doctrine.5 "A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such suspicion is not an `irreducible' component of reasonableness, [the Supreme Court has] recognized only limited circumstances in which the usual rule does not apply." City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (citations omitted). These circumstances typically involve administrative searches of "closely regulated" businesses,6 other so-called "special needs" cases,7 and suspicionless "checkpoint" searches. 16 Suspicionless checkpoint searches are permissible under the Fourth Amendment when a court finds a favorable balance between "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)) (internal quotations omitted).8 <snip> Second, airport checkpoints also "advance[] the public interest," as Brown requires.9 As this Court has held, "absent a search, there is no effective means of detecting which airline passengers are reasonably likely to hijack an airplane." Singleton, 606 F.2d at 52. See also Marquez, 410 F.3d at 616 ("Little can be done to balk the malefactor after weapons or explosives are successfully smuggled aboard, and as yet there is no foolproof method of confining the search to the few who are potential hijackers." (internal quotation marks, brackets, and citation omitted)); United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir.1973) (procedures requiring the screening of all passengers and luggage "have every indicia of being the most efficacious that could be used"). Additionally, it is apparent that airport checkpoints have been effective. However, here's where it can get hairy for TSA. Third, the procedures involved in Hartwell's search were minimally intrusive.10 They were well-tailored to protect personal privacy, escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search. The search began when Hartwell simply passed through a magnetometer and had his bag x-rayed, two screenings that involved no physical touching. See United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir.1972) (an airport magnetometer screen "per se is justified"). Only after Hartwell set off the metal detector was he screened with a wand—yet another less intrusive substitute for a physical pat-down. And only after the wand detected something solid on his person, and after repeated requests that he produce the item, did the TSA agents (according to Hartwell) reach into his pocket. 21 In addition to being tailored to protect personal privacy, other factors make airport screening procedures minimally intrusive in comparison to other kinds of searches. Since every air passenger is subjected to a search, there is virtually no "stigma attached to being subjected to search at a known, designated airport search point." See United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir.1973). Moreover, the possibility for abuse is minimized by the public nature of the search. "Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public." Id. at 1276. And the airlines themselves have a strong interest in protecting passengers from unnecessary annoyance and harassment. See id. TSA may have an out here, but I don't think it would fly" Lastly, the entire procedure is rendered less offensive—if not less intrusive—because air passengers are on notice that they will be searched.11 Cf. Singleton, 606 F.2d at 52 (approving a search where passengers "were given advance notice that the search was to be conducted, and could elect not to be searched by deciding not to board the aircraft"). Air passengers choose to fly, and screening procedures of this kind have existed in every airport in the country since at least 1974. The events of September 11, 2001, have only increased their prominence in the public's consciousness. It is inconceivable that Hartwell was unaware that he had to be searched before he could board a plane. Indeed, he admitted that he had previously been searched before flying. Hartwell, 296 F.Supp.2d at 605. Cf. United States v. Pulido-Baquerizo, 800 F.2d 899, 901 (9th Cir.1986) ("in light of the circumstances surrounding today's airport checkpoints," travelers who put their belongings on a conveyor belt "impliedly consent to a visual inspection and limited hand search of their luggage if the x-ray scan is inconclusive").12 I think you were arguing against a point I never made with respect to privacy. I never argued against screening - just the scope of it. The case you cited actually proved my point. Bierfeldt (via TSA agreement) and Fofana also have affirmed that the searches are to be limited. However, that doesn't stop TSA from repeatedly pushing the envelope until it gets smacked down. If an action is illegal under law, it was always illegal. A judge concurring it was illegal doesn't suddenly make an act illegal. Super |
Originally Posted by Superguy
(Post 14377381)
A court hasn't ruled on everything. Things like gate searches, liquid harassment in the concourse, etc.
TSA's general position is it isn't illegal until it's ruled illegal by the court. They have a tendency to ignore the law and constitution and implement practices that may not past judicial muster. Take Bierfeldt and Fofana. Bierfeldt was hassled because Kip deemed large amount of cash to be contraband even though it wasn't a prohibited item or fell under TSA's scope of looking for WEI. If TSA had a healthy respect for the Constitution and the law, they never would have implemented such a regulation and Bierfeldt never would have happened. I know we disagree on Fofana. While you've said you thought the screener misapplied SOP, many (me included) believe that she never would have been looking for those passports and exceeded the scope if TSA hadn't been looking for those things to begin with. Now did you read the whole decision, or just the part that suited your purpose? The general gist is that the search was permissible because it was narrow in scope and that the drugs were found incident to the search based on an alarm from the WTMD. It was also based on consent to begin with. Never argued otherwise there. However, I think there are also some important things you missed. I pulled the decision from here. Privacy is still very much at the forefront of the judges' thinking, and TSA was never given a pass to do whatever it wants in this ruling. Ok, so we have the exception for administrative searches. However, it is also limited in scope. I never argued against this. However, here's where it can get hairy for TSA. Here's where we run into trouble. The search was held constitutional because it wasn't intrusive to begin with, and was only more intrusive methods were used after the less intrusive means isolated the alarm (WTMD and HHMD). Given that TSA is using WBI as a primary method and is going balls to the wall (with the blessing of Congress, unfortunately :td:) by employing this, TSA is subjecting people to the most invasive methods to determine that they're not a threat. Less invasive methods are not being used and are being tossed to the side. I don't think WBI would pass this test. TSA may have an out here, but I don't think it would fly" TSA gives the notice that there will be a search and of course, everyone is subject to it. However, going back to the reason for the administrative search, we're back to it being limited and minimally intrusive. Given that TSA is ever increasing the scope and not starting with lesser means such as puffers and WTMD, I think TSA has a really hard sell for making it primary based on this. An argument can be made for the WBI in the case of a secondary when other things fail to resolve an alarm, such as a HHMD and asking the pax to empty their pockets. However, it seems to me that WBI would only be permissible as a last resort. One could argue whether a patdown or WBI is more invasive and that would be a valid debate. However, privacy and minimal invasiveness is the rule of the day on an administrative search, and TSA shows no respect for that. I think you were arguing against a point I never made with respect to privacy. I never argued against screening - just the scope of it. The case you cited actually proved my point. Bierfeldt (via TSA agreement) and Fofana also have affirmed that the searches are to be limited. However, that doesn't stop TSA from repeatedly pushing the envelope until it gets smacked down. If an action is illegal under law, it was always illegal. A judge concurring it was illegal doesn't suddenly make an act illegal. Super That's all I argued, as you asked to cite why I would say there is a lower level of privacy at a checkpoint. I was nit talking about the validity of secondary screening, even though that's what part if the decision was about. Just pointing out that to get there the court recognized there is a lower level of acceptable privacy. And that's all I said ;) Edit: but if you want to talk about another issue, a random search even when there was no initial alarm, read Torbet. |
Originally Posted by SATTSO
(Post 14376676)
Didn't know I told you to "quiet down". Or not to talk at all.
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Originally Posted by Superguy
(Post 14377381)
I think you were arguing against a point I never made
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Erratic TSA Barkers
Its obvious that the reason why so many TSA agents act erratically is because they have blue balls from staring at underage nude girls scanner images all day. In response to this problem, the TSA has released this statement:
"After a lengthly internal investigation, we found the primary cause of erratic megalomania in TSA screening agents was from a lack of sexual relief after being forced to stare at nude images of hot teens all day. In order to rectify this problem, we have moved the scanner image screens into spank booths with appropriate privacy and sanitary wipes. We feel this should eliminate most problems of erratic megalomania with the agency. We would like to appologize to the public for not remedying this situation sooner." In other news, Pee Wee Herman was awarded TSA screening agent of the year for the 4th consecutive year. His accomplishments include operating a scanner booth for 48 hours straight with no breaks.:D |
Originally Posted by Wimpie
(Post 14381629)
Its obvious that the reason why so many TSA agents act erratically is because they have blue balls from staring at underage nude girls scanner images all day. In response to this problem, the TSA has released this statement:
"After a lengthly internal investigation, we found the primary cause of erratic megalomania in TSA screening agents was from a lack of sexual relief after being forced to stare at nude images of hot teens all day. In order to rectify this problem, we have moved the scanner image screens into spank booths with appropriate privacy and sanitary wipes. We feel this should eliminate most problems of erratic megalomania with the agency. We would like to appologize to the public for not remedying this situation sooner." In other news, Pee Wee Herman was awarded TSA screening agent of the year for the 4th consecutive year. His accomplishments include operating a scanner booth for 48 hours straight with no breaks.:D |
Originally Posted by SATTSO
(Post 14377510)
I never said you argued against screening, nor is that what i was arguing. And this case does not support your claim, not in the least. The hartwell decison affirms that a 4th amendment search is warentless, and can be a "blanket suspicionless" search (I noticed you bolded that it was initiated after a lower level screening revealed something, but ignored everything else you didn't cite). And as such, the court ruled the publics expectation of privacy can be "violated" - a word the court uses. In other words, the public has a lower level of privacy in a 4th amendment search.
But anyway, no it doesn't state that a 4th amendment search is warrantless. :rolleyes: Saying so is a complete misunderstanding of the 4th amendment (and shows you haven't read the 4th amendment either). If a 4th amendment search is warrantless, then there would be no need for warrants. LEOs would toss whatever it wanted and TSA could search however it wanted. Do you not get that an administrative search is NARROW EXCEPTION to the 4th amendment? The whole premise of an administrative search is that it balances the need for public safety in certain instances with the right to privacy. It states that the searches are to be narrow in focus, but if something is found incident to the search it can be admissible in court. In other words, the drugs found on Hartwell were admissible because TSA wasn't looking for them. They were screening for WEI, there was an alarm, and it needed to be resolved. They weren't looking for the drugs, but it happened to be that the drugs caused the alarm. Now if TSA were actively looking for drugs, and searched him to look for drugs, that would very likely be inadmissible. That's all I argued, as you asked to cite why I would say there is a lower level of privacy at a checkpoint. I was nit talking about the validity of secondary screening, even though that's what part if the decision was about. Just pointing out that to get there the court recognized there is a lower level of acceptable privacy. And that's all I said ;) Now it said that the search's intrusiveness was lessened or was less offensive because people are told they will be searched. I think that was true under the previous system - while a lot of what TSA did was annoying it wasn't that intrusive. However, given the lack of information and the punishment many screeners dish out for opting out of the WBI, the signs don't really make it a less intrusive search especially because the most intrusive screening is used right off the bat. In some cases, putting up a sign doesn't make something more palatable. Putting up a sign saying "You'll be beaten with a baseball bat" by entering a public area doesn't make that less intrusive or less offensive. |
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