A good summary of 4th Amendment case law is at http://www.lectlaw.com/def/f081.htm, for those who are interested in a quick overview.

An astute and nearly 100% accurate post. Even for a “non-attorney”. :D

But you are incorrect in one aspect. We are trained and qualified to determine what is or is not suspicious. “Suspicious” does not immediately qualify something as dangerous, but as something needing additional investigation. That can be done by that same TSO or another TSO, a lead TSO or supervisory TSO, or by another member of the TSA such as a Bomb Appraisal Officer. LEO’s may also be called to make this type of determination, and often are. TSA will use whatever resources it feels are necessary to make this determination, and we have access to many different types of resources.

Otherwise, an excellent post. Thanks!

I guess that explains the "Heads up, we got a cutie for you" overheard by a father about his 18 year old daughter, whispered by an AIT herder at DEN.

This is one of the most insidious and asinine arguments people will make against our fight with TSA: that we can just choose not to fly.

Let's apply some rational thought here: in a spacious country with very limited rail service, how do I go see a client in Washington DC when I'm living in LA? Spend four days driving? Or six on Amtrak? Let me guess, I should just get a new job, right? Checked the unemployment numbers recently? Lots of "choice" there.

The assertion that some of us don't "have" to fly is preposterous. Putting the livelihood argument aside for a moment, what about people trying to visit relatives who are about to die? Should they drive from Chicago to Seattle and risk arriving too late?

For most of us, at a few points in our lives at least, flying is far from optional.

I've said this from day one. The TSA should have been made "law enforcement" with the accompanying rules and responsibilities. We would be better off than we are now.

We do not disparage your need to detect suspicious objects. We detest being treated as suspects and the techniques you use to find those suspicious objects.

But that is precisely what is going on now, in clear contravention of the Fourth Amendment. The enhanced patdowns are deliberately, unreasonably, unnecessarily intrusive, and are not a security measure (or they would have been instituted long ago); they are a behavior modification measure (to persuade subjects to opt for the NoS). The practice could be deemed unconstitutional on that point alone.

And the Brits got through the IRA bombings without becoming a police state that photographed all its children naked. Of course. But this is no longer about preventing terror attacks; it is about perpetuating the power of a rogue agency.

Just today we have a report of a man in SAN being threatened with a civil suit by a TSA operative for declining a genital grope and removing himself from the screening area, which is pretty much the same thing. Resist and you must be guilty. This line of reasoning is also unconstitutional.

Point one, the guy at SAN did not wish to consent and was threatened with legal action. Point two, the scope of an "administrative search" is clearly violated when TSA shows a preference for attractive young women, when TSA is enabled to examine the size and details of your genitals, when TSA forces sexual touch on small children as a precondition of travel, etc. (As TSA either cannot or will not professionalize its front-line corps to a minimally trustworthy extent, it is incapable IMO of administering legally "safe" search protocols.) Point four: to this "nobody's forcing you to fly" refrain: not true. This ain't Belgium. Commercial activity in the US depends on air travel. It is pretty much a public utility in this country; you might as well say I have to submit to nude viewing or junk-grabbing before I can have a cell phone or electricity at my house.

The odds of terror activity by those poor stupid jihadist bumblers are so low, and the anger and misery and injustice generated by TSA so great, that this particular "cure" for our security problems has become worse than the malady itself.

I completely agree. That was supposed to be the point of my earlier post, but I probably shouldn't post when I'm unable to sleep at 2 am. The government cannot just do whatever it wants and use security as an excuse. Any time the government infringes upon our liberties, it must have a compelling reason to do so. Even if there is a compelling reason to infringe upon liberty, that does not give the government carte blanche to do whatever it wants and be as intrusive as it wants to be.

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By this logic, the constitution wouldn't exist once we left our front doors. Anything we wanted to do could be limited by the government once it determined there was a security need. After all, just don't engage in whatever activity the government wants to regulate. That should not be acceptable to anyone.

I personally believe the choice between NoS and groping violates the Fourth Amendment. I don't think it's anywhere near a close call. But, the issue hasn't been decided by any court and I don't know what a court would say. Regardless, though, of what a court may or may not say, any government officer or branch of the government has an affirmative duty to uphold the constitution. Regardless of whether there has been a court decision, or what that decision were to say, TSA should not be groping or strip searching passengers who are not suspected of any wrongdoing.

One big irony is the amount of terror being created by an agency supposedly dedicated to fighting terror. Read the accounts of invasive patdowns forced on people who have been victims of rape or sexual assault. They'll leave you in tears. Some are administered by TSOs obviously uncomfortable with the duty, some by TSOs obviously relishing the power trip. But it's painfully obvious that this has virtually nothing to do with seeking explosives and quite a lot to do with traumatizing -- terrorizing -- innocent citizens.

I'd like to see a court tackle that, and I expect we will, but in the meantime TSA is the rabid pit bull in America's front yard: out of control, immune to reason, and somewhere between irritating and terrifying. Me, I think it should be put down, but we'll have to see what happens.

As far as I understand the case law in the administrative search precedent, it applies to our possessions -- once we put our possessions on the conveyor we consent to their being searched as defined under administrative search. However, I don't believe there is a lot of precedent on where the legal line is with respect to our rights in our physical person/body. I've got some inquiries into some of my constitutional law scholar friends on that topic.

The 4th does not explicitly guarantee privacy as we think of it today. It does explicitly say that S&S conducted outside the constitutionally-acceptable standards (usually a warrant or other extenuating circumstances) are forbidden.

Besides their plain ineffectiveness (greatest threat to security, IMO), the greatest problem with the TSA is that they aren't held to the standards of local, state or federal law enforcement agencies. There is very little oversight by congressional or other regulatory bodies (not counting DHS). Even customs and border patrol (who has VERY wide discretion to conduct s&s) must adhere to well-publicized standards.

Were I in charge, I probably would place the TSA (or whatever new name I came up with for it) under the jurisdiction of the United States Secret Service. They are arguably the best trained LEOs when it comes to observing, investigating and sealing security leaks before there's a problem. I would also hold them to the same legal standards of any LEO.

I think we need the courts to rule on these questions. How can that be accomplished? As I understand it, what TSA can do is say "no, you can't board this plane". It is a limited restriction of freedom.

But here's what I'm wondering. The Due Process clause says there has to be due process to deprive a person of "life, liberty, or property". If you have a nonrefundable ticket, the refusal to let you board because of unwillingness to be groped or xrayed is taking some property without due process. Shouldn't ACLU or someone else be trying this in the court to get the court to say it is or it isn't? This isn't like zoning where they limit the USE of the property. This is an actual LOSS of property. Though while I'm thinking about it, maybe one can buy insurance to recover the ticket cost if blocked from boarding? I don't know. I don't trust insurance companies, so I'm thinking there's some little clause saying they won't pay in that instance.

Then suggest better. Please.

Go back to pre-9/11 screening with minor adjustments to not allow any knives. Then you just accept that some people are going to die in a terrorist issue just like we accept that some people will die in car accidents.

I don't disagree with the general principle that one must submit to administrative searches, which differ from LEO/court-ordered searches, in order to fly. What I do disagree with is the idea that the discretion of the agency responsible for them is near limitless and they go unchecked by legislative bodies or the courts.