In recent years, Airport Security has become a hot topic and issue of debate with both the government and the general public. At the heart of the controversy are privacy concerns, worries about unreasonable government intrusion, and racial profiling. The creation of the Transportation Security Administration (TSA) has further amplified the issue.

Most recently, certain airports have put to use millimeter wave scanners, more commonly known as "body scanners." These "advanced imaging technology scanners" were met with public outcry and have raised both privacy and Fourth Amendment concerns.

What Is the Fourth Amendment Administrative Search Doctrine?

First of all, it has long been established that passengers have a Fourth Amendment privacy interest in their carry-on bags and luggage. However, administrative searches are allowed with little or no individualized probable cause that the person being searched is engaging in criminal behavior. An administrative search is a search done to further administrative goals, such as security, rather than to secure evidence of a crime.

These searches are typically allowed under the Fourth Amendment. Under this doctrine, for the search to be permissible, the government must establish the following:

  1. A compelling need to search
  2. That the search will serve the need
  3. That the decision to search a particular person is not left to the sole discretion of a field officer

Overall, the intrusion into the public’s privacy must not be unreasonable; this is determined by weighing the intrusiveness of the search against the government’s interests.

Do Administrative Searches Apply to "Body Scanners"?

Yes. In 2011, a Federal Court of Appeals determined that full body scanners qualified as an administrative search. It is important to remember, however, that you are entitled to opt out of these scans and submit to a pat down search instead.

What Is Equal Protection and How Does It Relate to Racial Profiling?

The Equal Protection Clause of the Fourteenth Amendment provides that the government shall not "make or enforce any law which shall deny to any person equal protection of the Laws." While there is no Equal Protection Clause in the Fifth Amendment, the Supreme Court has determined the principles and protections of Equal Protection apply to the federal government. The courts have identified the following as suspect classifications that trigger the most strict analysis:

  • Race
  • Ethnicity
  • National origin
  • Religion

Additionally, courts have determined that state action based on "alienage," or someone’s status as a non-citizen, will also receive strict scrutiny. However, since Congress has the inherent power to regulate immigration, any act by them, and therefore the federal government, that is focused on alienage will not receive this exacting level of review.

According to the FAA, the criteria used in profiling at the airport do not involve such suspect classifications.

Do I Need State Action to Bring Suit?

In general, in order for a person’s rights to have been violated, they must demonstrate that there was state action. However, courts have ruled that private airline employees are no different from public officials when conducting a search.

What Are the Problems with Making a Profiling Argument?

Profiling is inherently impossible to monitor by the public, legislative, or judicial authorities. Access to monitoring information that the public or Congress would need to engage in an informed debate about profiling has evaded review because it could be used by terrorists to evade being profiled. Therefore, as a practical matter, profiling may very well be occurring, but also may be a reality we are forced to live with.

Do I Need an Attorney?

The Fourth Amendment is notoriously complicated, particularly as it applies to airport luggage searches and racial profiling, and it is best to consult an attorney regarding the privacy rights that the Constitution demands. An experienced government lawyer will help you make the best argument possible regarding your Fourth Amendment rights.