thegingerman

You posted above:

I was simply using your language about "waiving violations" of certain amendments. Since you speak specifically to air travel in your quote, you seem to be indicating that the government can "waive violations" or whatever you want to call it in certain situations.

Certainly there are situations in which the apparent "rights" afforded by the Bill of Rights are not exercisable. You can't shout "FIRE!" in a crowded theatre and expect to face no consequences by claiming you have freedom of speech. Since you choose to make a technical argument about whether it's even possible to waive violations or not, it may have been wise to frame your original statement differently.

Semantics aside, I was making the point that there are cases in which the government can subject anyone who chooses to participate in a particular activity to a search with no probable cause or warrant. You seem to indicate in your post about waiving violations that this is type of search is not permitted in the case of air travel. I posit that it is permitted in other situations; why is air travel different?

Note that I am speaking only to the specific post which I initially quoted. I know that most of your gripe in this thread was about privacy and not about search. You appeared to be making a different point here, and that is all that I am addressing.

GUWonder

Your example doesn't really work too well most of the time; after all most crowded theaters in the US are private property and the "freedom of speech" does not apply to a freedom to speak on other people's private property. Can you share your own, better example?

An example of you shouting "BOMB!" on federal property perhaps would be more interesting.

rbedgood

right after the statement that you quote above...I happened to address the issue of the security agents asking for your name. The fact is that they could easily tag every passengers name as part of an "internal audit" and there wouldn't be much you or I could do about it. If they started selling my name to marketing companies I'd get pissed off then, and they could probably have a ID# of some sort print on each ticket so they took that instead of our name, but the fact is this could probably be cross-referenced anyhow.


Since I have now responded in kind...how about an answer to this question. If not taking a name for a temporary list to perform internal audits. How would you guys suggest that these "audits" be performed?

urlbuster

The Ninth Circuit held that airport security searches must be reasonable to comply with the Fourth Amendment of the U.S. Constitution. U.S. v. Davis, 482 F.2d 893 (9th Cir. 1973). Such searches are reasonable if: (1) they are no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives; (2) they are confined in good faith to that purpose; and (3) passengers may avoid the search by electing not to fly. To avoid the search a passenger must elect not to fly before placing the bag on the conveyor belt. U.S. v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986). The court further held that an "inconclusive" x-ray search, even one that reveals nothing suspicious, may still be followed by a manual search without being "unreasonable".

What say ye?

Bart

Let's not confuse the discussion with facts.

mollymeow

Without getting involved in the debate, I have a couple of thoughts.

First - As Urlbuster stated above, pax have the right to avoid any search by choosing not to fly. What is interesting to me though, is that the decision must be made before your bag is placed onto the conveyor belt. Has anyone actually been informed of this? I know I didn't find out until about 2 minutes ago.

Secondly - I admit that I don't know much about TSA's policies and procedures, but I have a what-if:

Let's say you're a TSA screener. The carry-on belonging to passenger "Joe Smith" just set off the explosives detection equipment. You follow the necessary procedures and determine that it was a false alarm, and clear him for flight.

About 2 hours later, you find out that a man is holding people hostage on a plane with explosives, or worse, has blown up the plane. It is revealed that it was "Joe Smith" with the explosives on board.

Maybe the TSA is just looking for a way of holding screeners/supervisors accountable in the (I'm sure VERY rare) instance that someone manages to get through security with very well-concealed explosives?

Back to your regularly scheduled debate.

thegingerman

Very nice description of the case law. I have not researched U.S. v Davis, so I'll take your description on faith.

What I'd say in response is that this decision clearly shows that air travel is an activity that calls for special treatment. The type of search you describe above would certainly violate the Fourth Amendment if applied to any person who wants to walk down the street. In that case, (3) would not be a defense of the search; i.e., the government could not say, "If you want to avoid the search, don't walk down the street." So, different circumstances call for different applications of the amendment.

With that in mind, it can become difficult to determine where the line is drawn in these differing circumstances. Thankfully, the court does intervene when called upon and offer guidance. Sometimes they get it right, sometimes they get it miserably wrong, but it becomes the law anyway. I think it is certainly arguable that current treatment does not violate the 4th amendment, as PTravel believes it does.

Whether the current practice of recording of names violates the Privacy Act is quite another matter, and I think it is much more difficult to make the case that it doesn't. But, that will likely remain the practice until a court decides that it is illegal. Understandably, not many of us would like to be the one to bring such an action against TSA. Without it, however, I think the chances of the practice changing are quite unlikely.

Bart

I'm supremely confident in the explosives detection equipment. It really works. The weakness is not in the technology but in the interpretation of the print outs. Your scenario might occur should a supervisor erroneously interpret the printout. However, even this is unlikely because, per SOP, the supervisor should have directed a thorough search of the bag after it alarmed. In this case, either the explosive would have been found in Mr Smith's bag OR Mr Smith would not have been permitted to board because TSA was unable to clear the bag.

This is my point about "false alarms." No such thing. The technology has detected a component, derivative or element associated with explosives. It may be that the same component used in explosives may also be used for some other non-sinister purpose when mixed with other chemicals, synthetics or elements. Believe it or not, the ETD print out will indicate that. The problem is that some supervisors may not have the skills to interpret it. It requires the proper training and, more importantly, plenty of practice. It also requires a degree of confidence.

I'm not dismissing your scenario. I'm just saying that in order for those events to unfold, there would have to be gross incompetence and dereliction of duty by a supervisor. That's always a possibility in any endeavor that relies on human judgment. I'd hate to see it happen the way you describe your scenario.

Bart

It violates the Privacy Act if a TSA representative fails to explain why the information is being recorded and how it will be used. It really shouldn't require a test case. It's already policy. That's why I'm amazed that simple review or inspection by one of the various government oversight watch dogs hasn't discovered this discrepancy. TSA is a relatively new organization but the Privacy Act certainly isn't.

daw617

This fails to distinguish between what kind of snooping is permitted, vs which is a good idea. Maybe the law would allow the government to snoop on borrowed books freely with no limits (I don't know), but that doesn't mean it would be a good idea for the government to do so. The real question here is whether requiring fliers to disclose their identity after passing an explosive screening test is good policy. It sounds to me like this practice is bad policy, that it is a needless intrusion into privacy that serves no good purpose.

We can argue until we're blue in the face about what the law permits. But not everything that the law permits is wise policy.

daw617

It is not at all clear to me that the practice under dispute here (namely, of TSA asking for passengers who pass explosive screening to provide their identity) is "no more extensive or intensive than necessary". We're talking about a passenger who the TSA has already determined is NOT carrying explosives. The TSA is so confident that this passenger is not carrying explosives that they are willing to let this passenger enter the sterile area and board their flight.

Now, once the TSA has determined that the passenger is not carrying explosives, why are they allowed to demand the passenger's identity? In what way is this search "no more extensive than intensive than necessary ... to detect weapons or explosives"? What does this practice have to do with detecting explosives? How does this count as being "confined in good faith" to the purpose of explosives detection?

If the purpose of the identity request is to evaluate the job performance of supervisors, then it sounds an awful lot like job-performance-evaluation should not count as a permitted purpose -- after all, it is not a purpose that is confined in good faith to the purpose of detecting weapons and explosives -- and it sounds like requesting identity of passengers verified to be free of explosives is more extensive than necessary to detect weapons or explosives.

It is interesting that we are back to the question of whether this practice is necessary for security. This is a question that has been asked right from the beginning of this thread. Early posters asked: what reasonable purpose could the TSA have for requesting the passenger's identity in these cases? If the TSA has a good reason for requesting identity in these cases, why can't they tell us what that reason might be? I still haven't heard a good reason (related to detection of weapons and explosives) for this practice.

whirledtraveler

There was some speculation here about Alaska being a good test case for this. Someone said that there are areas of Alaska that you simply can not get to except by air. So, imagine living in one of those places. You have no alternative but to consent, so your right of travel is infringed.

whirledtraveler

Well, I think the average person has the expectation that their library records are not going to be shared with the police. If you ask librarians, they certainly consider the records private.

Interesting topical note: the House of Representatives stripped the library/bookstore records provision of the Patriot Act yesterday. That's the most positive thing I've heard from Congress in a while.

A few weeks ago, I read that some librarians were about to start a system where they wouldn't hold records of borrowers. They would allow people to purchase magnetic striped cards (like gift cards). You could borrow books up to the limit on the card. The library would take the value of the book if you didn't return it, but when you return, the amount is credited to the card. No need for any records.

It's sad that people who care about American values would have to go through so much trouble to sidestep the government.

thegingerman

So, what about someone who is known to have committed airplane hijackings in another country? Does that person have a "right" to travel on a commercial airline flight to get to Podunk, AK? Would you afford the person that right if you were on the flight with them to Podunk, AK?

What about the person who has never been convicted of a crime, but has sworn to pursue the destruction of the United States, and has publicly stated, "I am going to bring down an airplane." Right to travel?

thegingerman

I don't believe there has been a single case of the government ever looking at anyone's library records. That's just a straw man constructed to generate hyperventilating about the Patriot Act.

That said, I think it is completely appropriate to look at someone's library records in the course of a terrorism investigation. Suppose someone were accused of blowing up churches of certain ethnic groups? Would the fact that they had read books supporting ethnic cleansing be relevant evidence at a trial (along with other evidence, of course)? How about books about how to blow up churches? It would be foolish to think these wouldn't be relevant facts, as they help to answer the question of having the motive and the means to commit a crime.