How the TSA preys on ignorance — and what you can do about it now

by Richard Walbaum on March 23, 2012

For those of you with a legal bent, or those who’ve simply wondered what the law says about TSA searches and what your rights are, here’s a brief overview.

The 4th Amendment requires reasonable suspicion or probable cause before a search can be conducted. But in 1973, the 9th Circuit Court of Appeals created a “special needs” exemption to the 4th Amendment for airport screenings. When you learn the rules laid down by the Court, you will know what the TSA can and cannot do, and will be in a better position to protect yourself from abuse.

The original 1973 “special needs” exception stated that:

“An airport screening search is reasonable if: (1) it is no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives; (2) it is confined in good faith to that purpose; and (3) passengers may avoid the search by electing not to fly.” U.S. v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005) quoting U.S. v. Davis 482 F. 2d 893 (9th Cir. 1973).

Later, in U.S. v. Aukai 497 F. 3d 955 (9th Cir. 2007), the Court deleted No. 3 because a terrorist might try several times, approaching a checkpoint and then leaving, until he finally managed to board a plane. But deleting No. 3 opened the door to abuse, because once you entered the security area you could not leave. You could not “avoid the search by electing not to fly.”

That still leaves No. 1 and No. 2 intact: the search can be no more extensive or intensive than necessary to detect weapons or explosives, and the search must be confined to that purpose and that purpose alone — detecting weapons or explosives — not detecting drugs, money, or anything else.

How is the TSA breaking these rules? If the TSA yells at you, or you opt out of the naked body scanner and the TSA makes a scene by yelling “OPT OUT, OPT OUT, WE HAVE AN OPT OUT!” that violates rule No. 1, because the screening is more intensive than necessary. An appropriate response from a passenger might be:

“Do you know that you have just broken the rule regarding suspicionless searches as stated in U.S. v. Aukai? The court’s rule states: ‘An airport screening search is reasonable if it is no more extensive or intensive than necessary.’ Intimidating or embarrassing me or others is more intensive than necessary. Was this your idea or the TSA’s, and how long has this been going on? I will be filing a complaint. I need your name and ID number.”

Unless you take some action, their rule-breaking will likely continue. Then again, as many people have attested, the TSA might retaliate by deliberately making you miss your flight. But if you want to fight TSA abuse, you might have to be willing to make a sacrifice.

If they want to put you in a cage (as they did with Sen. Rand Paul), or take 30 minutes or more to do a search that should take only a few minutes, that also violates rule No. 1. Depending on how aggressive you want to be, you might refuse the cage because it is more extensive than necessary; or you can wait in the cage for a reasonable time (say 10 minutes).

Whatever your choice, you can threaten them with prosecution under Title 18 Sec. 242, which provides up to 1 year in jail (10 years if threat of violence) and a fine for those who, under color of law, violate your rights. They can screen you now before they screen other passengers who should wait their turn, without making you wait; the detention must be brief. You have been seized, and the “special need exception” does not accommodate unreasonable confiscation of your time and may constitute an unlawful arrest. If you do not object, you waive your right.

Rule No. 2 requires that the TSA confine its search to weapons. In the case of US v. McCarty 672 F. Supp. 2D 1085 (2009), child pornography found in luggage could not be used as evidence because it was not a weapon, so the suspect went free. But if there is reasonable suspicion or probable cause, you can still be arrested as usual.

As a legal researcher, I think it’s important to restore the rule of law at airports. I provide more information on how to deal with the TSA at my website.