About Me

Steven Frischling
Live: HVN
Work: JFK-SFO-CDG-HKG
Contact Me

Steven Frischling, aka: Fish, is globe hopping professional photographer, airline emerging media consultant working with large global airlines and founder of The Travel Strategist. Fish has racked up more than 1,000,000 miles since he started to track his mileage in 2005.

Fish's travel tends to be less than leisurely, including flying from New York to Basrah, Iraq, for six hours; Hong Kong for eight hours, Kuwait City for two hours and traveling around the world in 3.5 days to shoot a series of photo assignments in 4 cities and 4 countries on 3 separate continents.

Fish grew up at the end of New York's JFK International Airport's Runway 4R/22L, which probably explains his enjoyment of watching planes, fly overhead. When not shooting photos or traveling Fish designs camera bags, hones is expertise on airline security and spends his time at home cheering for the Red Sox with his 3 kids 102 yards from the ocean.

How The TSA Legally Circumvents The Fourth Amendment

A constant complaint from those opposed to the Transportation Security Administration’s (TSA) new ‘enhanced’ pat down searches is that these pat downs violate a traveler’s Fourth Amendment rights.

For those unfamiliar with the Fourth Amendment to the United States Constitution it reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973, which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening.

In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered 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.”

U.S. vs Davis goes onto to state “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

U.S. vs Davis was upheld by the 9th Circuit Court in 1986 in U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 with this ruling “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”

These 9th Circuit Court ruling laid the path for the creation of Public Law 107-71, the Aviation Transportation and Security Act, which was virtually unopposed by legislators when it was it was signed into law on the 19th of November 2001 by President George W. Bush. This law laid the groundwork for the Transportation Security Administration and the evolution of its current security procedures.

These laws give the Department of Homeland Security (DHS) and Transportation Security Administration significant legal latitude to perform the searches utilizing their current procedures without fear of violating the Fourth Amendment.  Any attempt to oppose TSA searches citing the Fourth Amendment would be rebuffed unless done through the proper legal channels.

In order to create an effective change of the TSA’s policies, those who oppose current procedures should organize and file a legal action seeking to overturn or alter the U.S. vs David ruling by the 9th Circuit Court.

Presently the TSA has  what appears to be a “blank check” in writing out what is “no more intrusive or intensive than necessary” and what is “confined in good faith to that purpose.” With the latitude the agency has been granted … not only does a legal precedent need to be set that challenges U.S. vs Davis, but further oversight of the TSA needs to be created by the House & Senate committees responsible for overseeing and funding the agency.

A change needs to be made, a ground swell including both citizens and legislators must move in a single movement … but all of that is irrelevant without basing an argument on facts, opinions of qualified experts and an understanding of the laws that make this all possible.

Misinformed yelling does nothing to help bring about the change that is necessary.

Happy Flying!

128 Responses

  1. Slightly confused here, but let’s see.

    Are you saying that even though it would appear that the TSA screening procedures violate the 4th Amendment, US v. Davis gives the TSA the latitude to screen as is deemed appropriate?

    Just wanted to make sure I understood everything that was going on. :)

  2. You shill for the TSA, why do you always defend them, are you on their payroll?
    Oh wait, you are just stating facts, unlike the 98% of people who read this, I acknowledge that you are merely stating reality.

  3. I have to say that even as a recent follower of your blog, and completely failing when it comes to understanding the political side or legal side of arguments, I find your articles well-written and easy to understand. A lot of other similar blogs tend to have a lot of legalese (or complete absence of it) and a lack of objectivity and empathy. You manage to do all these. I can see that you thoroughly research your statements and present it all in a balanced way to inform and empower, rather than ‘write to incite’. I look forward to continue reading as all of this unfolds. Thanks for writing!

  4. Fish, just because the 9th Circuit ruled that 1973 airport screening procedures were legal administrative searches does not mean that the TSA is not currently violating the Fourth Amendment.

    In Aukai, the Ninth Circuit stated TSA screening procedures are “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.” (United States v. Aukai, 497 F.3d 955 (2007))

    Employing AIT as a primary screening mechanism hardly seems to comport to that ruling.

  5. @Matthew – well said.

    Have everyone go through the metal detector, and then the nude-o-scope or pat-down if and only if they set off the metal detector or otherwise need additional screening.

    @Fish – whatever happened to those ‘puff of air’ sniffer things?

    Seems the threat isn’t metal objects so much – box cutters, knife, screw drivers – now that the cockpit is secure.

    Seems the threat is explosives, which a pat-down seems difficult to detect but something the ‘sniffer’ might catch.

  6. How many bomb sniffing dogs could the TSA have on the job for the cost of one full body scanner? A few dogs sniffing everyone in line seems more secure than a handful of randomly selectees getting zappped and gropped.

  7. Presumably I have a right to fly. Is there any way I can fly without involving the TSA? Probably not. Therefore the argument that I have a choice not to fly is an argument saying I have no right to fly and therefore no right to travel.

  8. Basically:

    Because of an earlier ruling, TSA officials have discretion to interpret when a search is “no more intrusive or intensive than necessary” and, therefore, will not take your complaints that they are violating the 4th amendment seriously, unless and until a further court ruling explicitly actually defines “no more intrusive or intensive than necessary.”

    Hopefully, someone with time and money will file suit, or a legal advocacy organization will help file a class action suit for a mass of complaints. Or both.

  9. I thought about your argument a little further and offer this in response! ;)

    http://upgrd.com/matthew/why-the-tsa-violates-the-fourth-amendment.html

  10. Passengers have options when they go through screening at airports. 4 out 5 people are in favor of the AIT machine. People tend to forget that terrorizm is not oly overseas but here on american soil. The patdowns are nessary. The AIT machine are also. People forget that the Oaklahoma Fedaral building was blown up by an american and not some body from an arab counrty. The amtrax killer was an american. The uninabomber was an american. so when you go through the airport remember that some of the biggest terrorist threats in america came from americans and not some one overseas. TSA is here for the people. They are not here to affend anybody or to grope or look at your naked body. TSA is only doing its job to protect the traveling public from terrorism at home or abroad.

  11. Matthew,

    I make no conclusion of the validity of the law. I am not an attorney nor do I present myself as an attorney. I base what you consider to be my ‘conclusion’ on the opinions of consulting with attorneys that specialize in government affairs and Constitutional law.

    While there are new cases coming before the courts, the U.S. Government cities both U.S. vs Davis and the ASTA as the allowance for latitude for the TSA’s policy and procedures. If you challenge the validity of the laws cities by the Department of Homeland Security please take it up with the courts … because the ONLY way this gets changed is through the courts and legislation.

    Later in the week I intend to write a follow up to this post that discusses how the TSA has extended its latitude beyond the spirit of the law.

    Happy Flying!

    -Fish

  12. That ruling only applies to the geographic area of the 9th Circuit Court… Period. The 5th Circuit could apply something else, and I think they just might if enough suits are filed.

  13. Without getting into more recent rulings, and as a non-lawyer, I would simply point out Ninth Circuit rulings are only binding in the Ninth Circuit. Even if the Ninth Circuit did say that TSA can do what it’s doing (and it’s not clear to me that they have), there are 12 other circuits where the courts might not agree that what TSA is doing is okay.

  14. The 9th Circuit Court of appeals cannot suspend the Constitution for any reason. NOTHING can suspend the Highest law in the Land. Not a Court, not the Congress, not the president. Every last one of those maggots have sworn to uphold and DEFEND IT. If they don’t they need to be removed as the Traitors they are. Here’s one for you TSA employees. REFUSE TO DO THE JOB. You are not made innocent by the statement “I was only following orders”. You ARE as guilty as Himmler and Goebbels and any other fascist thug if you continue to refuse to uphold the rights that our Constitution has set in stone. When you go offline tonite after reading this it might not be a bad idea to take stock of the government that employs you. Following orders is no defense.

  15. and here is a good example of that the TSA and everyone else knew a long time ago. Yet nothing has been done to circumvent it. It’s much more fun patting down citizens (sheep) that won’t resist.

    http://news.bbc.co.uk/2/hi/americas/3095592.stm

  16. I think this part of the ruling is interesting: “confined in good faith”

    I’d say that if TSA openly admits that the screenings don’t work, then they are no longer conducting them in good faith.

  17. Oh, and let us not forget this part… “and passengers may avoid the search by electing not to fly.”

    Electing not to fly does NOT allow you to avoid the search, as we recently found out.

    Apparently they decided THAT PART of the ruling can be forgotten about.. but not the part about how it doesn’t violate the fourth amendment.

  18. Andy,
    The 9th circuit didn’t “suspend” the 4th amendment, from what I understand they ruled that the searches aren’t unreasonable. And the President can suspend it via marshal law.
    Chief,
    good on you for realizing the unfortunate reality of the world we live in. I don’t think pat downs are necessary, as long as body scans are mandatory, but as long as their is an opt out pat downs are a necessity.

  19. Is it true TSA was professionaly trained to do pat downs? Who is providing professional training for sexual molestation and groping of children at the TSA? What are their credentials? How many years experience does the trainer have and what are his more notable accomplishments ?
    How long does it take to make a TSA new hire into a professional child molester under this training course?
    How are less enthusiastic molestors weeded out?

    TSA ppl who hate doing pat downs, protest with us and call out sick on the 24th

  20. Like many others, I must travel on business. I also am a bit shocked to believe that I must subject myself to being groped to do so. As with most things that are done by the government, this was not well thought out, even if it was legally allowed. Why is it that every passenger needs to be groped, scrotum squeezed, and breasts fondled? The outrage needs to be elevated to make the legal basis reflective of traveler rights. But who in congress will listen or even act? After all, it is necessary to protect the public, blah blah. Maybe these events will encourage some of my clients to accept video conferencing and other remote work. It will cost less and then I will not have to endure humiliation just to go to work.

  21. First, misinformed yelling, if enough people yell, will result in a change. The senate will fire John Pistole. Obama will lose his job. People will be replaced. The political system rarely works in this country, but it does work if enough people complain.

    Second, the legal precedent very clearly does give additional rights to the TSA as far as adminstrative searches, but it also clearly states the need to balance individual rights with the risks. I think what many have pointed out is that the TSA is not effectively making that balance.

    Third, except in the case of prisoners or actual suspects in a crime, there is no legal precedent for touching genitals.

    You are right though, every single person who is subject to an illegal search by the TSA should immediately file a civil suit against the TSA, and pursue criminal charges as well.

  22. I agree that one should read the details of US vs Aukai. One of the reasons Aukai lost that case is precisely because he was not subject immediately to an invasive “pat down” but rather a wanding and a refusal to remove items from his pocket, which justified the more invasive pat. The language of this decision suggests that had Aukai been subject to an immediate physical search, this would have violated his fourth amendment rights.

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

  23. For everyone calling Fish a shill for the TSA, did you forget he was detained by them last week? Or that they sent federal agents to his house a year ago? How quickly you forget.

  24. David,

    It is not that people forget that I have been detained by the State Police at the request of the TSA … or that they may be unaware that last December the TSA sent two Federal Agents to my house three times in two days to hand me a subpoena that was ruled to be outside their jurisdiction … it is that my coverage of the TSA is even handed.

    The one thing I see most is that people are frustrated and many are frustrated that I choose to not be emotional in my coverage of the TSA. There are many sides to these stories and tensions run high on every side. I prefer to equate things to real equations not inflammatory comments that are easy but wrong.

    For those who think I am a TSA apologist or a TSA shill, they clearly do not read Flying With Fish. They miss all the coverage I have put into making researched comments that pick apart the TSA. Yes, I have praised the TSA when they deserved praise, I have debunked myths using research and fact because myths do nothing to further bringing about change … most important I have brought to light opinions from those within the TSA and DHS who believe the TSA needs change.

    It is easy to stand outside the walls and say what needs to be changed, but I find it more effective to have insights from those inside the agency that not only needs change, but can point out how the agency needs to change. These may not be the most popular “sound bites” but I think it increases the potential for change through intelligent conversation.

    Happy Flying!

    -Fish

  25. What I would like to know, is actual statistics… how many actual terrorists have been detained due to a TSA employee? I suspect it is not due to heightened security measures at all. A point in fact – the ONLY time there has been ANY change throughout our history is when the American PEOPLE have instituted that change. NOT a politician. This is the first time I have read your blog, thank you for sharing. I am appalled at the lengths we are willing to subject ourselves, while still being concerned with national security. I am very thankful to be an American and am glad to live here, but there needs to be somthing done – or next thing you know you’ll be walking naked through security.

  26. What is it with this $11,000 fine if you decide to walk away once you see that they really are fondling gentiles?

  27. One last comment and I will go do something productive. Why is it that attorneys have made millions representing people who were tapped on their butts or had the genitals fondled by Catholic priests, with little evidence. Yet TSO’s can do the same to young boys and girls and be called heros? How sick! Can you imagine the emotional scars of that 3 year girl will have after having that TSO stick her hand up her dress and do whatever? I agree that maybe a class action suit should be started.

  28. “..in light of current technology..”

    It’s not 1973 anymore. Time to send it back to the Supreme Court. They’re violating our Constitutional right.

    Intrusive/Extensive by showing a virtually naked photo of myself to a government employee as a condition of the search.

    Intrusive/Extensive by putting their hands on myself and my young children’s private parts because I opt out of a screening method I find an invasion of my privacy (which IS new technology).

    Not to mention the lack of proper testing on the equipment, the money trail leading back to a former government official..

    The TSA Screening process reaks of Constitutional Violation! Send it back to the Supreme Court!

  29. [...] the defendant challenged the airport screenings to be a violation of his 4th amendment rights: http://boardingarea.com/flying…rth-amendment/ The court case the article refers to: http://www.ca9.uscourts.gov/datastor…07/0430243.pdf The [...]

  30. Kris and Chief,
    There has not been a fatal explosive on a plane in the U.S. since 1962. That was long before the increased security measures after Sept. 2001. Not a fatal hijacking worldwide since 2001. The unibomber and Oklahoma city bombing have nothing to do with the TSA. If you want to get into car bombs (since those are more common), then I guess you support stopping every driver for scanning and enhanced pat-downs. The airport has been safe since before scanners. You are more likely to die from pilot error or mechanical failure. If you want to make flying safer, start there. It will save many more lives than the TSA. The only unfortunate reality of the world we live in now is that anyone is willing to give in to those that hate our freedoms. They asked for your freedom and you gave it to them on a silver platter. You let fear of a highly unlikely way to die control you and gave up your dignity.

    There are more recent rulings from the Supreme Court which support that reasonable suspicion is necessary in order to search a person’s body in this manner.

  31. “While the new TSA enhanced pat downs may violate the Fourth Amendment on the surface, what most people are not aware of is that the 9th Circuit Court of the United States ruled on the search of passengers in airports back in 1973,…”

    I’ve been asking people for a long time: “Why d’ya think they call ‘em ‘opinions’, dummy?

    IOW: you’ve changed the subject. You’re not talking about the Fourth Amendment. You’re talking about a court decision. That’s a big difference.

  32. I have to believe the supreme court reviewed the pat downs we received in the 70’s NOT what the TSA/SS are doing today.

  33. [...] has a great analysis of the why some say the pat-downs violate or do not violate the guarantee provided by the 4th [...]

  34. It seems that any rationalization would be good enough for you to have the TSA, or whomever, under the color of ‘authority’ probulate you, up to, and possibly even including, cavity searches.

    Is that too much, or an I merely overreacting?

  35. Christopher Shaffer

    They have no more right to search you than a police officer who is only given the lattitude of a terry pat down. The measures are a result of something that didn’t even happen in the US. The so called “underwear bomber” boarded a plane abroad because he would not have made it through TSA proceedures as they stood.

    Additionally, Instead of feeling up me, my wife and my children. The TSA should increase the deployment of Behavior Detection officers (some of whom i know first hand and are extremely effective). It seems to work pretty well for Israel

  36. Now is the time to every American who wants to stay free, contact their government representatives and tell them to uphold your 4th admendment rights.
    Click on this link to find your gov reps
    http://www.contactingthecongress.org/

  37. @Shaffer brought up something I had not considered. What is acceptable form of pat down for police officers? Wouldn’t TSA be expected to adhere to those standards? I understand that search requirements are different for those going into jail or prison.

  38. One way to avoid the TSA security measures is to fly in a private plane or jet. Oh, but wait, only the wealthy elites can do that….

  39. [...] will be no US$11,000 fine for your actions.  This new policy may also give the TSA additional 4th Amendment wiggle room in allowing people to refuse the pat downs without legal [...]

  40. @Nolan Eakins
    Nobody has the RIGHT to fly. Thats like saying you have a RIGHT to drive. Both are privlidges. What other rights do you have that you pay for? Getting on a plane is a service provided to you by that airline. You are required to go through security which is part of their procedures. You dont have the RIGHT to bypass security because of your alleged right to fly. The searching of passengers is not UNREASONABLE which the 4th ammendment protects. You know in advance that when you purchase a ticket you will go through this screening. Your purchase of this ticket with this knowledge is your basic acceptence of this practice.

  41. @French
    Officers are held to a different precedent then TSA agents are. Beyond the Terry Pat Down, officers have to demonstrate probable cause or obtain a warrant to perform a search of a person’s property unless an arrest is made. TSA is obviously void of that requirement as they are permitted to search your bags, your shoes, etc. So are you then saying they are violating your 4th ammendment rights by searching your bags, while having you empty your pockets and taking off your shoes? Are police officers allowed to come up to you and have you empty your pockets and allow them to search your luggage, your shoes, with out a warrant? If so, then why are you ok with that if you are in protection of your 4th ammendment rights? Have you ever gone to a concert? They will have signs that clearly state that all bags are subject to search. Is this a violation of your 4th ammendment rights? What about when you’re videotaped without your permission while shopping? Is this a violation of your privacy as well? The point is that everyone is informed of what searches are being conducted prior to the search occurring. Everyone has the ability to leave, without being searched or not be in a particular area where searches are being conducted. You make the cognitive decision to make yourself available for this search but then want to complain its violating your rights. I find that hilarious.

  42. [...] it doesn’t matter because a ruling came down in 1973 that gave eventual birth to the TSA and their new scanners and groping methods.  [...]

  43. [...] rights, and I completely agree with that; however, apparently the two court rulings explained on this website pretty much blow that idea out of the water. It pretty much explains that due to the rulings in two [...]

  44. US vs Davis says TSA is allowed to do administrative searches. Does it say they do not have to provide a search warrant, or is it just implied that they don’t have to provide a search warrant. It seems that US vs Davis allows TSA to define what an administrative search is, but wondering if it addresses the search warrant. Anyone know?

  45. [...] Why they can basically circumvent the 4th amendment… How The TSA Legally Circumvents The Fourth Amendment – Flying With Fish [...]

  46. [...] How The TSA Legally Circumvents The Fourth Amendment (2010) [...]

  47. I imagine that in the 1970s, there may have been some debate regarding so called “administrative searches leading to further circumvention of the 4th and 5th amendments to the U.S. Constitution”. At the time, objections were probably swept under the rug. Today, the very fact that our leadership, both the Congress and two seated U.S. Presidents, are simply looking the other way, and allowing X-Ray and Pat down searches without probable cause and without warrant – only proves that the Terrorists WIN. Slowly, steadily, FEARFUL and STUPID politicians are allowing the erosion of our Constitutional RIGHTS – and before it is all done – we may be getting pat down as we try and enter or leave our grocery stores or our banks.

    I’ve seen the videos of TSA strip searching an 8-year old boy, and patting down a 3-year old child, and feeling up women and men alike. Clearly the absurd has taken over in DHS – these idiots don’t realize they are playing right into the terrorists hands.

  48. IAlreadyHateFlying

    I have been unemployed for 6 months, and I have a job interview in another city requiring me to fly. Their travel agent called me up to arrange transport. On a whim, I asked if I could take a train. TSA somehow doesn’t think trains are all that important. She called up HR. HR called me up in a panic, telling me that if they hire me, my job will require a LOT of travel, and is this going to be a problem? It took me 5 minutes to convince her it was not a problem even though, really, yeah, it is. So in essence, I do not have the ability to “not fly”. I have the ability to be jobless, if I chose to not fly. This is great!

  49. Sometimes I swear I can smell my own underwear when I spread my legs a little.

  50. [...] “How The TSA Legally Circumvents The Fourth Amendment” and related posts (boardingarea.com) [...]

  51. [...] a matter of law, an airport security screening is considered an administrative search, and is allowable if executed for the specific purpose of attempting to locate weapons or [...]

  52. Is the Constitution the supreme law of the land in the USA?
    If so, what gives the 9th Circuit Court the authority to suspend any part of the Fourth Amendment or any other law?
    One cannot discern anything ambiguous in the Fourth Amendment quotation in your second paragraph.
    Are judges required to rule only upon existing law?
    Can they set aside existing law to conform to they learn-ed opinion or to resolve matters which the existing law does not appear to address?

    When buildings, buses, schools, streets, trains and vessels are all deemed to be under the same supposed threat as commercial aircraft, will ‘suspended limited aspects of the Fourth Amendment ‘ also be in order?

    Clearly officialdom is in love with the naked body scanners.
    They make an irresistible investment, capable of generating billions of dollars in profit.
    The hands-on search is viewed as mere transitory collateral damage.
    Of course astute security product investors can now offer other options which the public may view as palatable. Biometrics for instance would still generate huge ROI while circumventing the flak raised by electronic and physical strip search.

  53. If it is ‘duplicate comment’ and ‘I have already said that’ why it is not posted?
    Who are we fooling ole chap?

  54. [...] TSA, to take necessary steps to protect the country’s’ air travelers.  (Read “How The TSA Legally Circumvents The Fourth Amendment.”)  This part I agree [...]

  55. [...] “How The TSA Legally Circumvents The Fourth Amendment” and related posts (boardingarea.com) [...]

  56. Isn’t the 9th Circuit the most-overturned court in our land? Just because they made that ruling in 1973 doesn’t mean we willingly give up our Constitutional protections.

  57. Greg- the problem is the TSA is saying you can’t leave if you choose not to be pornoscanned or groped. I’m happy to take my chances and if they try to force the scanner or grope then say nope not flying today and turn around and leave – but the NAZI TSA won’t let us do this. They want to detain and fine us for deciding NOT to go thru security and NOT to fly. They have clearly stated they “randomly” select people for scanning. To then conclude I am a terrorist or in possession of an incedinary device simply because I refuse to a virtual strip search or an groping assault is just plain stupid.

  58. Re; Nolan Eakins comment on 11/20/10. He stated that it’s his right to fly. That is incorrect. Flying on a commercial aircraft is a privalage, not a right. It’s the same as driving a car, it’s a privalage not a right.

  59. I haven’t read the 1973 Davis case cited by the author above, and have no intention of doing so. A holding from the 9th Circuit is NOT binding on the other Circuits in the United States. Furthermore, there have been no underlying facts given, just a snippet of dicta. That is always dangerous. I am mildly curious whether this was an international or domestic flight because I do believe that would be a major distinction. Border searches can be much more intrusive (regardless of whether we’re talking about a foreign traveler or US Citizen.) In US border crossings WITH reasonable suspicion (not to be confused with Probable Cause) they can strip you down and get after you with x-rays and the rubber gloves!) The law in this area has been well established. However, this does NOT apply to domestic flights! Indeed there have been more recent holdings concerning domestic flights that say TSA exceeded the scope of their search authority (looking for weapons and explosives) in finding illegal drugs, child-pornography, and the like and (unfortunately for the poor traveler) I expect we will be having a lot more case law developing as these issues percolate up through the courts. Not the best facts, but naturally it is the criminal defendants that will have the greatest incentives to fight this stuff. If they’re the only ones opposing, unfortunately, the law will morph to treat everyone like criminals. For the case law to be more balanced in the future it would be far better if it were the travelers (free of contraband) that were raising hell about these TSA practices for no other reason than they value their privacy and liberty as a United States Citizen.
    I believe these naked body scans and genital gropes by the TSA are a clear violation of the 4th Amendment and are clear violations of a variety of Criminal Laws in every state. (If they’re not so bad, why do TSA protocols make allowances for members of Congress and Diplomats to be escorted around them?)
    I want to point out THREE Government lies being propagated in the Media. FIRST, I have seen these body scanners demonstrated live. If you believe these blurry-cannot-see-anything images TSA is putting out accurately depicts what they can see with these devices (usually with a weapon thrown in for drama) then I have some Ocean-Front property for sale in Nebraska. With these devices they can count the freckles on your junk! SECOND, they are leading us to believe our Constitution is somehow controlled by public opinion when the quote polls indicating a majority of Americans support the use of these devices. First, those numbers are old and as more and more people become aware just how intrusive these procedures are the support is waning. (I believe now those opposing are now in the majority…but STILL that doesn’t matter!) Our Constitution protects the rights of the individual, NOT the majority. There was a time in our not-so-illustrious past a “majority” of Americans believed in racial-segregation, and that women shouldn’t be allowed to vote…and so on. Our Constitution is not a popularity contest! And THIRD, there is this business they are saying that “flying is a privilege not a right.” BULL! FLYING IS A RIGHT! We have over three-hundred years of juris prudence interpreting the right to travel interstate as a RIGHT arising from the privileges and immunities clause and public transportation (such as airlines)has always received heightened safeguards. And one other thing TSA is putting out to the media (which I wouldn’t say rises to the level of an outright lie but is definitely being portrayed in a misleading way) is this TSA Fine business (for refusing screening.) They make it sound as though anyone who refuses will pay this…just because they said so. NOT SO! There is indeed an administrative penalty schedule for passengers and air-carriers for violating travel regulations ($11,000 reserved for the most egregious violations) but that only STARTS with TSA. There is a full court appeal process which even includes a defense of inability to pay. TSA pumped out a bunch of “we’re gonna fine him $11,000″ garbage to the media in the famous John Tyner (“Don’t touch my junk”) incident…then they quietly came back after it all died down and said privately to him there would be no penalties. (Too bad, I would have LOVED to taken on this case!) CLEARLY this was designed by TSA to manipulate the media and terrorize the American public into submitting to these illegal procedures.

    1. BEFORE going into airport screenings turn ALL recording devices ON! And be quick on the draw to capture incidents of abuse whether you know the person abused or not. (TSA protocols prohibit them from stopping you from recording with two exceptions: You cannot hold up the line in doing so; and you cannot record the displays revealing the contents of passenger bags or of course these naked body scanners which you should not be able to see anyway…TSA gets to keep those for their own enjoyment I suppose.)
    2. DON’T submit to these body scans! (And beware, the backscatter machines look and work very much like the old walk through metal-detectors only much larger.)
    3. If you, your spouse, or your children get sexually molested by these perverted-thugs at TSA file administrative complaints with TSA; and criminal charges with the local authorities. You can also sue TSA under 42 USC §1983.

  60. Couldn’t have written this article any better myself….

    Completely agree with the last statement, and it is just do to mass ignorance… I always tell people to get all the facts from both sides of and argument, then u can make your own informed decision….simple rule to apply to any situation in life….

  61. [...] “How The TSA Legally Circumvents The Fourth Amendment” and related posts (boardingarea.com) [...]

  62. Not a lawyer but now that have been groped four times since October, I can say this “Its just plain wrong and should be curtailed”. I am a grown 51 year old midwestern businessman who has traveled 4 million miles on airlines since 1989. My groping session last week at O’Hare brought me to tears. It was perhaps the most humiliating exercise I have ever had to go through. Tonight I travel to Atlanta…..I am not sure what I going to do if I get tapped on the shoulder to go through the scanner again, I might just burst into tears again.

  63. Since when has Granny become a terrorist? I am a 58 year old white American grandmother. Was there any reasonable cause or justification for Logan TSA groping of me. I got both the porno scan and the pat down. They must have really liked my porno picture I guess. It was totally humiliating and disgusting. And the purpose was? How many 60 year old women terrorsits have there been on airplanes anyways? And yes, this was a very Nazi experience. I will not fly again as long as the TSA is there.

  64. Search: An examination of a man’s house, premises or person, for the purpose of discovering proof of his guilt in relation to some crime or misdemeanor of which be is accused.

    When you are searched, they are looking for proof of your guilt, not your innocence.

    Reasonable: In the law of Negligence, the reasonable person standard is the standard of care that a reasonably prudent person would observe under a given set of circumstances.

    Unreasonable: Not determined by reason; capricious; arbitrary; irrational. 1.having or showing little sense or judgment; not rational
    2.excessive; immoderate; exorbitant

    The constitution does not mention administrative searches. It only mentions unreasonable searches. What is an unreasonable search?

    “An examaination of a man’s person for the purpose of discovering proof of guilt in an excessive, immoderate or exorbitant manner.”

    When the rights of someone else are intentionally or maliciously infringed upon, such conduct demonstrates bad faith.

  65. You are all not thinking about this in the right light. Why do we have these searches? It is to keep the passengers on the plane safe. If it were not for these searches you could get blown out of the sky. Over 3500 dangerous contraband are found in these searches each year. That is 3500 planes with over 150 people on each. So deal with the search it is better than Thousands of people getting killed by stupid people.

  66. It is obvious to all but the most blindly indictrinated statist zealots that TSA’s genital/anal groping “patdowns” blow the Fourth amendment to hell and back.

    Offering air passengers the alternative “choice” of enduring a scan that not one medical expert who holds an M.D. degree has said is 100% safe is NOT a passable option. Neither is telling Americans to take the bus. Apparently “The Government” hasn’t heard the news that no buses go from the U.S. to Europe, Asia, Micronesia or Australia.

    The supposed”law” that Bush 43 signed that allows these outrages do the same. Article VI of the Constitution establishes the Constitution and Bill of Rights as the supreme law of the land in America. Article VI goes even further, mandating that every law and judicial ruling must be in accordance with the Constitution – if any law or judicial ruling contradicts any provision of the Constitution ,it is null and void from square one.

    16 American jurisprudence verifies this fact:

    “The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement… No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”
    -16 American Jurisprudence 2d, Sec 177 late 2d, Sec 256

    TSA’s insidious and outrageous “pat downs” – along with the supposed “law” allowing them and the 9th CC’s statist rulings all contradict the Constitution and are therefore null and void. It’s high time “The Government” and the American people stop pretending otherwise.

  67. I have to agree with some of the respondents. This article appears to contain one or more fundamental failures of logic.

    First off, as the law itself as quoted says, it is necessary to balance the interests of the public versus the intention to keep flying safe. It is arguable — and I so argue — that TSA’s procedures do not reflect such balance, and go far beyond any reasonable intent to “keep flying safe”.

    Second, our right to travel *IS* in fact codified in U.S. law, even if not in the Constitution. In fact it predates the Constitution, and goes back to English common law (which is also incorporated into law in most states).

    But more specifically, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in concurring opinion that “IT IS A RIGHT BROADLY ASSERTABLE AGAINST PRIVATE INTERFERENCE AS WELL AS GOVERNMENT ACTION. LIKE THE RIGHT OF ASSOCIATION … IT IS A VIRTUALLY UNCONDITIONAL PERSONAL RIGHT, GUARANTEED BY THE CONSTITUTION TO US ALL.” [emphasis mine] The Articles of Confederation also had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

    So regardless of the 9th Circuit’s ruling, the argument that the government has authority to interfere with citizens’ travel (intra- or interstate, anyway), is false to begin with… the Supreme Court has already ruled so: we have a “virtually unconditional” right to travel. The airlines, as private providers of transportation, are certainly free to implement whatever reasonable restrictions they like on the services they sell. The government, however, has no legal authority to interfere.

    It (the government) may, if it has compelling interest, make reasonable and Constitutional checks for criminals passing through (which would require probable cause, not mere suspicion), and arrest those who are breaking the law. But it has no authority to implement mandatory x-rays or patdowns without probable cause, or to turn away travelers who do not comply with any demands it chooses to make.

  68. It boils down to this; if you’re ‘asked’ to subject to additional screenings, you can ‘refuse’ and will most likely be denied boarding. Simple, right? But the TSA goes on to state the 9th court’s ruling empowers them to insist one complete the enhanced screening despite being denied boarding. Using your refusal to relinquish your 4th amendment rights as probable cause because you do not voluntarily give them up is forcing compliance through coercion by intimidation and threat of arrest and/or fine. This now becomes ‘unreasonable’ search and seizure of one’s person and belongings and is, on it’s face, blatantly unconstitutional, and the TSA knows this but uses the ignorance and apathy of everyone to their advantage. People need to wise up and speak up.

  69. Jean Val Jean

    This is a pretty stale thread, but I felt I had to make the point that just because something is legal as defined by congress or the courts, does not mean it is legal in the US. The constitution is the highest law of the land, and I would believe that the bill of rights is not the font of my rights, but rather that it merely codified them. I had those rights before the bill was written to limit federal powers (leaving aside any issues with states). In a similar manner, one’s right to be free of unreasonable searches is intrinsically one’s own, to be abrogated only under worthy circumstances. Merely flying is not one such circumstance, that is to say, to suspect everyone is a terrorist is unreasonable with no attempt to use one’s history of actions, travel patterns, background, etc. Congress or the courts currently have indirectly allowed for the act to be “legal” but there is still room to say it is not, for certainly violates one’s dignity and may have violated the constitution.

  70. [...] [...]

  71. Stale but still relevant. I recently flew out of Salt Lake CIty where the TSA has instituted 100% body scans or, if you opt out, groping pat downs. It was the first time in my life that I’ve been subjected to such a violation perpetrated. by my goverment. I’ve sent a note of to the TSA complaining and told them to count me as a U.S. citizen that is against this procedure and have letters on the way to my rep, Senator a the President.

    As long as I am groped I will continue to send out messages to these government entities in the hopes that someone will wake up.

  72. Andrew Jackson

    I cannot wait to see the youtube video of you getting fingerfucked by the TSA like the real victims have had to deal with.
    You are quoting the 9th Circuit Court of the United States as if they are the U.S. Supreme court.
    And even the supreme court has been wrong before (Dred Scott v. Sandford ring a bell?)
    I’m sorry, but you sound like one of the “useful idiots”

  73. Since the SCOTUS rulings appear to be focused on aircraft security, does this mean that mandatory VIPR searches of rail and bus passengers and their bags clearly violate 4th amendment?

  74. [...] [...]

  75. An old thread, but… to those comments that claim that there is no fundamental right to airline travel, that is basically a policy the TSA made up relatively recently. Until the past few years (even quite a few years after 2001), you could board a plane on a *domestic* flight without an ID. Yes, it’s a secret they didn’t want you to know, but you could. Why? Because of the right to free travel that has been upheld in a number of court cases. The idea that the government could restrict your travel because they didn’t have appropriate ID was considered ludicrous (and illegal). Look it up.

    The search question is more complicated, but the TSA searches fail even if you deny the right to free travel, because they are now considered administrative searches and thus cannot be refused. In other words, you do not have to consent to them — they can do them anyway, even if they plan to refuse you boarding.

    The consent exception is separate from the administrative exception to the 4th amendment. Before 2001, if you refused to be searched, you would just be denied boarding. If you refused an escalated search, you would just be denied boarding. Unless they had real probable cause on you, you could simply leave.

    That is no longer the case. Once you enter the security zone, TSA can now search you — you have no option to simply say, “I don’t consent to the search” (once they tell you what it is or try to escalate it) and leave. Notice how family and friends were excluded post-2001 from the gate area? Why? Because they would have no good cause to be able to require them to be searched rather than simply allowed to leave.

    Quite frankly, the searches do not depend on consent. They assert that if you are present in a certain place in the U.S., you can be searched — your rights be damned. It has nothing to do with travel.

  76. Bob,

    You can still fly in the United States without an ID. I have written about it, the TSA doesn’t like it to be known, but you certainly pass through security without an ID.

    Happy Flying!

    -Fish

  77. I thought that only CONGRESS can make laws. The Judicial Branch was made the weakest branch on purpose, because lawyers aren’t in touch with the “people”, our elected Congress. Benjamin Rush wrote about this extensively, even prior to him writing the constitution. When did the Judicial branch become allowed to make law? But then agan, congressmen and senators only worked 1 month out of the year because they were statesmen, it wasn’t a full time job.

  78. andy, georgia,,,, if we continue to be sheep, then we will be lead to the slaughter,,, wonder if a petition on the ballot to procecute those who violate the constitution, even as ( it is just my job ) employees as traitors .
    and to all those who like security over freedom,, go to a country that pratices such,, don t push your sheep on free americans

  79. The truth is that the TSA is routinely violating the terms of an Administrative Search. Specifically, when the concept of an Administrative Search was created by the U.S. Supreme Court (Camara v. Municipal Court, 387 U.S. 523 (1967)), the court stated that the reasonableness of the search can only be determined by “balancing the need to search against the invasion which the search entails”. Further, in People v. Madison, 520 N.E.2d 374 (1988), it was held (albeit by the Illinois Supreme Court) that the government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations.

    To the first, as a professional aviator, I can assure everyone that there are significant holes in the security infrastructure that TSA knows about (I’ve reported several, and never had any fixxed.) Clearly, if the back door is unlocked, putting bars over the windows would be excessive.

    As for the second part, TSA has made a habit of turning people over to police for “suspicious” behavior, such as carrying a large amount of cash on a domestic flight. As there is no limit or reporting requirement on carrying cash domestically, each of these cases clearly shows an intent to abuse.

    Taken together, TSA is systematically violating the Fourth Ammendment, and the theory on which Administrative Searches are based. Consequently, I believe that a well argued challenge should be successful in, at least, placing restrictions on their behavior. The trick is financing the challenge.

    I do agree with the author in that change needs to happen, and, “Misinformed yelling does nothing to help bring about the change that is necessary.”

  80. Since tax payer dollars funded the bailout of numerous airlines, I would say that flying is a right, not a privilege. If your dollars funded it, it means you have part ownership, duh! Whoever came up with this misnomer needs to be reminded of the fact that the tax payers bailed out the airlines. Let’s see here folks, can you think of other corporations that were bailed out by your tax dollars and try to figure out what your privileges and rights are??? Hello??? Is this thing on??????????

  81. [...] the D.C. Circuit plugged the strip-search machines into the strangely incoherent “administrative search” exception to the Fourth Amendment. In two pages of analysis (out of the opinion’s seventeen), the court [...]

  82. [...] that TSA AIT scanners violated the Fourth Amendment, religious freedom and personal privacy, the Court of Appeals did not find that the AIT scanners violated the Fourth Amendment and are an essential part of airport security. With this ruling however the TSA must now begin the [...]

  83. [...] 2. This is a violation of the Fourth Amendment to the U.S. Constitution. Courts have ruled that airports are a partial, special exception to the Bill of Rights (much like international borders).  These rulings have authorized airport security workers to conduct administrative searches.  This is a legally different standard than a search based on probable cause of wrongdoing.  These “conversations” with TSA agents wherein they solicit private information from you (presumably as a condition of flying) are beyond the scope of an administrative search.  For more of the specifics of the court rulings that have led to our current debacle of airport security, here’s some reading for you. [...]

  84. [...] carry out administrative searches without probably cause, as I wrote about in November 2010 here, How The TSA Legally Circumvents The Fourth Amendment, the question of whether or not the TSA can legally perform physically invasive pat downs without [...]

  85. I didn’t read the entire article… Nor did I read most of the comments… However no amount of legal jibber-jabber can change the fact that the Constitution specifically states that legislation which contradicts the Bill of Rights is NULL AND VOID. An amendment is the ONLY way to change the Constitution….

    So, as far as this American is concerned, screw your Supreme court cases. Screw “exigent circumstances”, and screw the concept of “safety before liberty”.

    The Constitution is the supreme law of the land, and what the TSA does is totally and completely illegal according to the 4th amendment. A government worker CANNOT search your belongings or person on private property. PERIOD. End of story.

    You want to end the controversy? Use PRIVATE security. Then you can grope people as much as you want. But as long as airports are FORCED to use GOVERNMENT employees to sexually assault, search, grope and detain American citizens on private property as a prerequisite to travel, they are breaking the law, and people that allow it are cowards. It’s that simple.

    I’ll even go as far as saying that parents who allow their children to be molested by these gestapo are worthless, spineless human beings who are unfit to procreate in a “free” (yeah right) country.

    I won’t fly until TSA is done away with. And if I’m forced to fly, I’ll be arrested and file a lawsuit before I allow a TSA nazi to lay their hands on me.

    That’s America.

  86. [...] carry out administrative searches without probable cause, as I wrote about in November 2010 here, How The TSA Legally Circumvents The Fourth Amendment, the question of whether or not the TSA can legally perform physically invasive pat downs without [...]

  87. You CANNOT suspend a Constitutional Amendment without an act of Congress and State Ratification. These courts are illegally doing this.

  88. [...] being barred from feeding the poor because they don’t have government permits and how the TSA routinely violates the 4th Amendment (and an erroneous decision by the 9th Circuit Court of Appeals in 1973 that allows it), I started [...]

  89. Hiya Willy Castellaneta here, I’d been looking for information on How The TSA Legally Circumvents The Fourth Amendment – Flying With Fish in the search engines. So happy to have arrived at http://flyingwithfish.boardingarea.com/2010/11/20/how-the-tsa-legally-circumvents-the-fourth-amendment to know about this knowledge. Ended up saving everybody a ton of hours, thanks alot :).

  90. Just two points here. The constitution is the highest law of the land. You don’t get to legally “circumvent” the highest law of the land. You want to change the constitution–there is a process for that. Second the searches that were considered administrative and “reasonable” in the 1970’s are the not searches that are going on today. A strip search/pat downs of the nature that are going on today are both invasive and beyond what is needed to ensure the saftey of passengers. I highly doubt the court of 1973 would find grasping women’s breasts and men’s scrotums–not to mention children’s bodies reasonable.

  91. The latest abuse is now happening on roadways, trains and waterways, your reference to the 9th circuit although timely back when is now shown to be totally out of date and irrelevant, the TSA believes they have the right to patrol all transportation systems and they never stop at securing air travel but will arrest anyone for any law they can – how is that pursuit to the 9th circuits rulings ?

  92. It’s so easy to make it ok for all you people who think you get “groped” by TSA.

    Don’t fly, you bumbling, complaining, no brain _______! Who did you lose in 911? Noone I bet!
    Go stand a post at a security checkpoint that attempts to keep people safe, then you tell me what we should do to keep people from taking explosives and weapons on airplanes. You don’t agree with the security? Take your chances driving! Anyone of you who thinks TSA people grab people’s private parts are ignorant and uneducated. Sorry to break the news to you, when you go to the airport you make the choice to be screened, if you get screenws, you get to fly. Flying is not a right, flying is a privelage. Get over yourselves, noone wants to touch you.

  93. Okay, let’s think of this? Let’s just say the TSA is disbanded and all that. Airports return to privatized screening. Blah blah blah. All is good right? Well, first of, Federal law requires that job openings must be offered to current TSA employees first. Second, the new screening company also has to follow the same rules as TSA did (TSA is under DHS. TSA rules are DHS rules, and you must follow Federal law). Finally, the technology would still be there. Body scanners and stuff. The threat is still out there. The hiring process is one of, if not THE most difficult processes my friend has ever done (he’s a Supervisor for TSO’s). It took him over a year from application to coming on board. Or would you rather want registered sex offenders, rapist, criminals. The TSA conducts MANY background checks, from working with the FBI to calling high school principal offices, several medical/drug tests, a panel interview, and much much more. Another TSO I know lost his job after one DUI, and was never busted for anything before, even a speeding ticket. Even if we get rid of the TSA, someone else will take over. The threat will never go away. Am I in favor of the new pat downs? No, not really. But I am also against those who slander employees for doing their jobs and making outrageous claims against them. The bottom line is, there will always be a threat, and there will always be someone trying to hurt the United States. My two cents.

  94. Interesting — How to beat the TSA: Threaten to sue under lawsuit 42 U.S.C. 1983- Lt. Col. Craig Roberts

  95. Why doesn’t someone sue the court for the ruling that violated the constitution. In essence, is it legal for a court to dismiss part of the constitution at any time for any reason the court sees fit? The constitution has definitions for when they can violate it for searches approved by the court (judge), but can the court itself have the right to side step a constitutional law entirely and then delegate that authority to another entity besides the court.

  96. [...] S. (2010 November 20). How the TSA legally circumvents the Fourth Amendment. Retrieved from [...]

  97. [...] S. (2010 November 20). How the TSA legally circumvents the Fourth Amendment. Retrieved from [...]

  98. [...] balance the right to be free of intrusion with society’s interest in safe air travel.” How The TSA Legally Circumvents The Fourth Amendment – Flying With Fish No amount of Ronulan bullshit changes this. [...]

  99. [...] How The TSA Legally Circumvents The Fourth Amendment [...]

  100. [...] Administrative search doctrine goes all the way back to 1973: The key wording in this ruling includes “noting that airport screenings are considered 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.” [...]

  101. I know this thread is stale, but to those who state that flying is not a right, I must counter that it is indeed a right granted by 49 USC § 40103.

  102. What most people fail to realize is that MOST airports, regional or international, are PRIVATE PROPERTY. The TSA has Absolutely no connection with Airports. Airports agree to have TSA agents on property conducting these searches and providing security. If they really wanted to do away with the TSA and hire their own Private security companies they very well could. It would cost airports more money than Im sure they would want to spend. Instead they have free security provided by uncle Sam and it allows UNIFORMITY among all the airports in the country. TSA is not responsible for the idiots that are in other countries that come here unfortunately. But it is their job to stop them before they proceed onto AMERICAN Soil. Does the TSA violate your personal space at times? Yes. But remember, its the Airports themselves that agree to have the TSA there in the first place. People forget that Terrorism has many faces, many ages and many religions. They use and exploit children overseas for terrorists plots. Its only a matter of time before someone starts doing it here. I would hate to see my child subjected to a search of that magnitude, but it only takes one child strapped to a bomb to make us realize that it can happen. We are so fortunate that we have yet to see our children be used as human weapons.

  103. Cory,

    You are technically correct and incorrect. PL 107.71 states airports may choose to use private aviation security services, however they must apply for this via the TSA. The TSA has time and time again refused to allow any new airports top opt out of using the TSA. I have written about this quite a few times.

    While some airports are private property, their security must adhere to federal requirements for commercial flights to operate.

    Happy Flying!

    -Fish

  104. [...] carry out administrative searches without probable cause, as I wrote about in November 2010 here, How The TSA Legally Circumvents The Fourth Amendment, the question of whether or not the TSA can legally perform physically invasive pat downs without [...]

  105. There’s your mistake right there Steven: Where does a circuit court get the authority to “suspend” aspects of the Constitution?

  106. Hmmm

    No where in the Constitution is ANY COURT OR GOVERNMENT ENTITY ALLOWED TO OVERRULE THE CONSTITUTION!!!!!!!!!!!! THAT 1973 RULING IS A DIRECT VIOLATION OF THE CONSTITUTION AND THE 4TH AMENDMENT. AS SUCH THIS RULING ILLEGAL ON ITS FACE AND IS THEREFORE NOT LEGALLY BINDING ON THE CITIZENS OF THE UNITED STATES. WAKE UP PEOPLE IT IS OUR COUNTRY NOT THE GOVERMENTS!!!!!!

  107. [...] harassment pat-downs aren’t violations of our 4th Amendment rights. Today, I finally read a blog that explained it in terms I could understand. I disagree with his assessment, but at least I understood what he was [...]

  108. This is what the TSA is up against. So what do they do? TSA Chief Says Al Qaida has Altered Underwear Bomb Formula By: Kimberly Dozier, AP Intelligence Writer in the HS Today report

  109. I recognize no law or entity that goes against the Constitution as it was written. The 9th circus has been overturned than any court or whore in the land.Congress has been taken over by likes of people that would be at home in a septic tank.(Shit also floats as well as cream). If we demand that those in government who are suppose to work for us WE THE PEOPLE abide by the Constitution we are lost.

  110. [...] How The TSA Legally Circumvents The Fourth Amendment – Flying With Fish. Simmering discontent about the intrusion is now out on the streets too | Pre-Flight Check. Friday, [...]

  111. [...] Discussions TSA Circumvention of the 4th Amendment [...]

  112. People are willing to trade their safety for a few minutes of not having to “suspend” their rights?

    I mean I get it that the security check point is violating your 4th amendment, its unconstitutional, but personal safety feels far more important than personal privacy.

    Someone has said in the comments that, and I’m not entirely sure if its accurate, 3500 dangerous contraband are being found each year. I would also like to point out one aspect of these security check points is to also deter anyone THINKING of bring dangerous contraband.

    Now lets say that there where enough misinformed yelling that gets the TSA removed. We are not only allowing that 3500 each year, but we are now inviting those who didn’t attempt to do the same. That could increases 3500 be maybe 2x or x3. Who knows? Which also increase the chance of any of you catching a ride with a gun or even a bomb.

    Come on people, lets get our priorities straight, because you constitutional right ain’t gonna do you any good if you’re dead.

  113. The unwarranted touching of your genitals during a search would be sexual battery. When forced to submit to this travesty it would be wise to apprise the TSA, recorded and with local LEOs in attendance, that doing so without your consent would result in a stopping the frisk rather abruptly with force. I’m quite sure the TSA will then just ask the LEOs to escort you out of the area and you can find another way to your destination.

  114. As a passenger, and Cuban-American, I been unjustly placed on the “Black List” of TSA and every time I travel a full cavity search is performed which clearly constitutes my 4th amendment violation and my civil liberty rights. Their profiling should be geared toward the right suspected culture, NOT the US citizens…its plain mental retardation for a democratic nation to be employing dictatorial rules and having TSA employees participate in their fascist methodologies of search procedures. These sadistic implementations of searches are illegal, regardless of how much you sugar coated!!!!!! The application of an illegal law, doesn’t NOT make it right, it just demonstrates how far the new dictatorship of Congress is willing to go to alter the human rights of people!!! Presently there is NO differences between the USA, Cuba, China, Iran and other dictatorial nations in their fascist doctrines of illegal searches.
    God Save Us All!!
    Charles Del Campo
    Paranormalpsy@aol.com

  115. Hey! Why does your link to the U.S v. Davis link redirect me to a completely unrelated court case?! I’m trying to do research here, and I can’t find this case ANYWHERE on the web!

  116. Nevermind. I finally found the quoted parts. I still have trouble finding this on the web though. Why?

  117. And why is it called U.S vs Davis instead of U.S v. Marquez?

  118. It’s not a constitutional issue because airlines are private corporations who set the security screening requirements for their passengers. The 9th circus court decision is moot. When you agree to fly as a passenger on Brand X airline, you agree to the fine print of their security requirements. You willfully and intentionally enter the security checkpoint for the purpose of their administrative search. It is not like the search and seizure of a law enforcement officer by any stretch of the imagination. Screeners are not police officers.

  119. Robert Siegmund

    “Misinformed yelling does nothing to help bring about the change that is necessary”

    Ain’t that the truth. Love the simplicity of your statement; nicely said. :) Excellent post too. Clear, concise, properly linked, where appropriate and most importantly – factual.

    Thank you for your writing! :)

  120. [...] gets a free pass on this, as they now have the power to search passengers in any way they choose to, and the only [...]

  121. So if I’m understanding this correctly, under U.S. v Davis, the TSA has no jurisdiction over drugs? In other words, they cannot search for marijuana? Just curious.

  122. An example of a “general regulatory scheme” or administrative search is a DUI/DWI checkpoint that many localities undertake. The purpose must be to ensure road safety and not merely to use it as a way to get around finding ordinary criminal wrongdoing. Towns must usually give notice that they are doing checkpoints, must be conducted neutrally, and the scope and discretion of officers must be limited to ensure they don’t go beyond a level of intrusiveness that a warrant is designed for.

    In essence, the 9th Circuit said that airport security was similar. In these instances, you do not need to have a warrant because the scheme is not, in the abstract, directed toward a specific individual as long as the entire scheme itself is conducted in a “neutral” way. Neutrality can mean searching every 5th bag/car. This must be justified by a substantial administrative purpose in a usually highly regulated industry (in this case, air security/safety). I think the government would argue that intrusiveness of optional body scanners or pat downs is warranted by concurrent advances in weapons technology or methods. In addition, once the TSA believe they have found something suspicious, this arguably gives them reasonable suspicion or maybe probable cause to search further. The reason the courts defer to law enforcement here is because they feel the public need outweighs individual privacy interests. Like it or not, most or all of our individual rights are subject to these public pressures.

    That’s not to say I’m agreeing or disagreeing with any comments made here, or what the courts have said. I just wanted to expound more on what the law generally is in regard to the 4th Amendment. In my humble opinion, most of the problems we see with the TSA come from officers who are acting beyond the discretion given to them by law. The problem with security measures is that the federal government often throws money into technology and manpower without adequately monitoring or training officers. Without a rein on discretion, TSA can get away with many searches that are pushing the boundaries of intrusiveness allowed by the Constitution or are without real suspicion. Thus, it’s good that individuals are challenging the circumstances they were in. It might lead to the courts finally defining the legal terms to fit into our contemporary problems.

  123. Rena, the TSA does not search for drugs. If drugs are found when doing a search TSA does not take them from you, you are free to pass through the check point. However, LEOs will be informed and it is up to them as to how they will proceed from there.

  124. Jay,

    You are incorrect. Should the TSA find narcotics in your bag during passenger screening you will be held for questioning by law enforcement. You are not free to pass.

    Happy Flying!

    -Fish

  125. If I’m Military (I am) and I’m traveling on orders (witch I do fro time to time) doesn’t that negate the whole “you can choose not to fly” bit. In that case I literally can’t choose not to fly. How would the logical legal argument proceed from there?

  126. More IEDs have been detonated by terrorists on the streets of Boston than on US-originating airplanes. Therefore, would the 4th amendment also not apply if the Boston PD or FBI established a routine practice of searching everyone who passes by checkpoints on the streets of Boston or other major cities. After all, one does not have to take advantage of the privilege of walking down a public sidewalk. In fact, since the sidewalk is governmental property, it is more justifiable to search people for entering this government property that to search those wishing to enter an airplane owned by a private corporation.

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