Airport Security Measures: Privacy and Profiling Lawyers

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 What is an Airport Security Screening?

Airport security screenings are a way in which transportation security officers (TSOs) can search passengers and their carry-on baggage for potentially dangerous or harmful materials or substances. The authority for these security screenings is provided to the Transportation Security Agency (TSA) pursuant to the Aviation and Transportation Security Act of 2001.

The Transportation Security Act of 2001 was signed into law by President George W. Bush after the terrorist attacks on September 11, 2001. The TSA developed a process by which it can conduct security screenings in order to maximize safety and minimize passenger delay.

What Are the Steps in a Security Screening?

There are three basic steps that make up an airport security screening, including:

  • An X-ray machine;
  • Walk-through metal detector; and
  • Additional screenings, which may include:
    • Hand-wand inspections;
    • Carry-on baggage inspections; and
    • Pat-down searches.

All personal items and carry-on baggage is required to be placed on a belt and go through an X-ray machine. Any items which are too large to fit through the machine are required to be checked and will not be permitted as carry-on items.

Laptop computers and video cameras are required to be taken out of their cases and placed into bins prior to going through the X-ray machine. All coats, jackets, and blazers must also be removed and placed in bins to be examined using the X-Ray machine.

The TSA does not require that an individual remove their shoes for X-Ray screening. However, TSOs will encourage an individual to remove their shoes as most types will require additional screening.

Every passenger is required to walk through a metal detector. Any metal objects on their person or clothing has the potential to set off the metal detector.

Individuals are encouraged to place any metal objects, such as keys, loose change, and phones, in bins to go through the X-ray machine in order to avoid setting off the metal detector. If an individual sets off the metal detector, they may undergo additional screening.

An individual will be subjected to additional levels of screening if they set off the metal detector or if they are chosen for additional screening. It is important to note that the FAA does not permit additional screening to be performed based on an individual’s race or national origin.

If an individual is selected for additional screening, they will be directed from the metal detector to a screening station. At this time they should notify the screener regarding any personal needs they may have such as concerns based on:

  • Medical issues;
  • Religious concerns; or
  • Cultural concerns.

In most instances, an individual of the same gender should conduct the additional screenings. An individual may also request that the additional screening be performed in private.

The TSO will brief the individual regarding the next steps of the screening, which may include:

  • Hand-wand inspections;
  • Carry-on baggage inspections; and
  • Pat-down searches.

Must I Consent to Airport Security Screenings?

No, an individual is never required to consent to an airport security screening. If, however, they refuse the screening at any point during the process, they will not be allowed beyond the passenger screening checkpoint and will not be permitted to fly.

If an individual wants to be able to board their plane and travel to their destination, they must consent to any and all security screenings.

What about Airport Security Measures: Privacy and Profiling?

In recent years, airport security has become an issue of debate both with the general public and with the government. The controversy involves:

  • Privacy concerns;
  • Worries about unreasonable government intrusion; and
  • Racial profiling.

The creation of the Transportation Security Administration (TSA) has further exacerbated these issues. Recently, airports have begun to use millimeter wave scanners, or body scanners.

These advanced imaging technology scanners have been met with public outcry. They have also raised both privacy and Fourth Amendment concerns.

What is the Fourth Amendment Administrative Search Doctrine?

It has long been established that passengers possess a Fourth Amendment privacy interest in their carry-on bags as well as their luggage. Administrative searches, however, are permitted with little or no individualized probable cause that the individual being searched is engaging in criminal behavior.

An administrative search is a search that is conducted to further administrative goals, including security, rather than to secure evidence of a crime. These searches are usually allowed pursuant to the Fourth Amendment.

Pursuant to this doctrine, for a search to be permissible, the government is required to establish the following:

  • A compelling need to search;
  • That the search serves the government’s need; and
  • That the decision to search a particular individual is not left to the sole discretion of a field officer.

The intrusion to the privacy of the public must not be unreasonable. This determination is made by weighing the intrusiveness of the search against the interests of the government.

Do Administrative Searches Apply to Body Scanners?

Yes, administrative searches apply to body scanners pursuant to the Federal Court of Appeals holding that a full body scanner qualifies as an administrative search in 2011. It is important to note that an individual is permitted to opt out of these types of scans and be subject to a pat-down instead.

What is Equal Protection and How Does it Relate to Racial Profiling?

The Fourteenth Amendment’s Equal Protection Clause provides that the government shall not “make or enforce any law which shall deny to any person equal protection of the laws.” Although there is not an Equal Protection Clause in the Fifth Amendment, the Supreme Court has held that the principles and protections of Equal Protection do apply to the federal government.

The courts have identified certain suspect classifications which trigger the most strict analysis, including:

  • Race;
  • Ethnicity;
  • National origin; and
  • Religion.

In addition, courts have held that state actions based on alienage, or an individual’s status as a non-citizen, will also receive strict scrutiny. Because Congress has the inherent power to regulate immigration, however, an act by Congress, and, therefore, the federal government, which is focused on alienage will not receive this exacting level of review.

Pursuant to the FAA, the criteria which is used in profiling at an airport does not involve suspect classifications.

Do I Need State Action to Bring Suit?

Generally, in order for an individual’s rights to have been violated, they are required to demonstrate that there was state action. Courts, however, have ruled that a private airline employee is no different than a public official when conducting a search.

What Are the Problems with Making a Profiling Argument?

It is inherently impossible to monitor profiling. Access to the information regarding monitoring which Congress or the public would be required to review in order to engage in an informed debate regarding profiling has evaded review because it may be used by terrorists to evade being profiled.

As a practical matter, profiling may be occurring but it may also be a reality that individuals are forced to live with.

Do I Need an Attorney?

The Fourth Amendment is very complicated, especially as it applies to airport luggage searches and racial profiling. Because of this, it is best to consult an attorney regarding the privacy rights that the Constitution provides.

An experienced government lawyer will assist you in making the best argument possible to protect your Fourth Amendment rights.

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