The Rutgers Law Record
https://lawrecord.com/2011/01/26/placing-myself-on-the-no-fly-list/
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Placing Myself On The No-Fly List


In March 2010, the Transportation Security Administration 1 (‘TSA') began rolling out its Advanced Imaging Technology 2 (‘AIT'). The AIT, also known as the Full Body Scanner 3, penetrates clothing with a burst of radiation which provides an image of the passenger's naked body along with any guns, weapons or items secreted on the passenger. The TSA stated the new scanning devices were to “ensure travel remains safe and secure.” In late 2010, the TSA announced 4 it was implementing new pat-down procedures 5. These new ”enhanced” pat-downs were put in place in order to “keep the traveling public safe.” The AIT and enhanced pat-downs permit what some have described as a sexual assault 6 on today's airline passenger. When a passenger is selected for enhanced screening, they have two choices: be viewed naked or be groped.Once the TSA implemented their invasive procedures, the public was shocked 7. The stories related by passengers regarding the new procedures were appalling. A breast cancer survivor was forced to show her prosthetic breast to a TSA agent. 8 A bladder cancer survivor had his urostomy bag disconnected during an enhanced pat-down, resulting in the passenger being covered in his own urine and embarrassed beyond belief 9. A rape victim, not wanting to relive the horror of being manhandled by a stranger, was arrested after refusing a TSA pat-down 10.

Of course, many people were willing 11 to go through these little embarrassments as long as it increased security.  After all, we are living in a post-9/11 world. But these enhanced screening procedures are targeting some unlikely victims. Children are subjected 12 to both the AIT and the enhanced pat-downs, resulting in some unhappy children lashing out 13 at TSA agents.  In order to make children comply with the new screening process, TSA regional security director James Marchand 14 said "if you can come up with some kind of a game to play with a child, it makes it a lot easier.” However, critics suggest that allowing groping to be treated as a game places children at risk of assault by sexual predators 15. Even wheelchair-bound 16 nuns 17 are not immune from the TSA's probing fingers.

And what of the Fourth Amendment 18 and it's protections against “unreasonable searches and seizures?" The Supreme Court, in examining ”reasonableness,” said “there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.”1 Building on this balancing approach, the Court of Appeals for the Ninth Circuit found airport screenings to be administrative searches because they “are conducted as part of a general regulatory scheme,” where the essential administrative purpose is to “prevent the carrying of weapons or explosives aboard aircraft.”2 In U.S. v. Davis3, the court paved the way for more intrusive searches of passengers at airports. The Fourth Amendment seemingly provides little protection when the government claims the privacy interest of the individual is outweighed by security interest of the government.

Since the Constitution offered no solution, I contacted Senator Frank Lautenberg 19 (D-NJ), Senator Robert Menendez 20 (D-NJ), and Congressman Bill Pascrell 21 (D-NJ) to voice my concern over such intrusive searches. Only Senator Menendez honored with me with a reply, which can be found here 22. Senator Menendez assured me that Congress was acting on the problem, stating:

You may be happy to know that the U.S. House of Representatives recently passed H.R. 2200, the TSA Authorization Act, which included an amendment prohibiting TSA from utilizing whole-body imaging as the first-screening device at airports. Accordingly, TSA would only be allowed to use this technology for secondary searches of individuals who have already triggered primary metal detector alarms. Further, the amendment requires that screeners disclose that millimeter wave imaging could allow a TSA worker in a remote room to see through their clothes, and affords passengers the right to request a pat-down search in lieu of full-body imaging.


Unfortunately, H.R. 2200 stalled in the Senate 23. So, the TSA can continue to use these intrusive search techniques without any guidance from Congress.

Thus, the traveling public is left with few options. We can either subject ourselves to the possibility of a sexual assault by a random TSA agent, allow ourselves to be photographed in the buff, or we can choose not to fly. I have chosen not to fly. By refusing to travel by air, I and many others 24 hope to exert economic pressure on the airline industry and force a change in the screening procedures. An adverse ruling by the courts and an ineffective Congress does not end the debate over unreasonable and invasive searches during airport screening. It merely shifts the burden to the place from which our Constitutional rights originate: to the people. I encourage all readers to examine the state of affairs at the airport for themselves, contact your representatives, and voice your opinions.



1 Camara v. Mun. Court of County & County of San Francisco, 387 U.S. 523, 536-37 (1967).
2 United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973).
3 Id.  See also United States v. Aukai, 440 F.3d 1168 (9th Cir. 2006) (finding that because a secondary search comports with the Fourth Amendment's requirement that a search be reasonable, a passenger who presents no identification at check-in, and who voluntarily walks through a metal detector without setting off an alarm, cannot prevent a government-ordered secondary screening search by stating he has decided not to fly and wants to leave the terminal).
Links:
  1. http://tsa.gov
  2. http://www.tsa.gov/approach/tech/ait/index.shtm
  3. http://en.wikipedia.org/wiki/Full_body_scanner
  4. http://blog.tsa.gov/2010/08/enhanced-pat-downs.htm l
  5. http://www.tsa.gov/press/happenings/102810_patdown .shtm
  6. http://wewontfly.com/flight-attendant-tsa-sexual-a ssault-story
  7. http://www.bostonherald.com/business/general/view. bg?articleid=1276565
  8. http://www.msnbc.msn.com/id/40278427/ns/travel-new s/from/toolbar
  9. http://www.msnbc.msn.com/id/40291856/ns/travel-new s/from/toolba
  10. http://www.examiner.com/libertarian-in-national/ra pe-victim-arrested-after-refusing-tsa-pat-down
  11. http://www.usatoday.com/travel/flights/2010-01-11- security-poll_N.htm
  12. http://www.youtube.com/watch?v=hA4o6AI_LA0
  13. http://www.nydailynews.com/travel/2010/11/17/2010- 11-17_stop_touching_me_tsas_security_patdown_of_3y earold_girl_caught_on_camera_.html
  14. http://www.tsa.gov/press/releases/2006/press_relea se_0681.shtm
  15. http://www.rawstory.com/rs/2010/12/airport-patdown s-grooming-children-sex-predators-abuse-expert/
  16. http://www.jihadwatch.org/2010/11/now-you-can-brea the-easy-infidels-wheelchair-bound-nun-searched-by -tsa.html
  17. http://michellemalkin.com/2007/09/22/photo-of-the- day-9/
  18. http://en.wikipedia.org/wiki/Fourth_Amendment_to_t he_United_States_Constitution
  19. http://lautenberg.senate.gov/
  20. http://menendez.senate.gov/
  21. http://pascrell.house.gov/
  22. https://docs.google.com/viewer?a=v&pid=explore r&chrome=true&srcid=0B2dsFx_lgzubMWU4MjUzM zEtNWNmNS00MjJkLWE2NzItYzNhY2UwNDJhM2Rl&hl=en
  23. http://www.govtrack.us/congress/bill.xpd?bill=h111 -2200
  24. http://wewontfly.com/
Post date: 2011-01-26 15:50:22
Post date GMT: 2011-01-26 22:50:22

Post modified date: 2011-03-11 17:50:20
Post modified date GMT: 2011-03-12 00:50:20

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