Tuesday, November 23, 2010
The refusal of a San Diego passenger to submit to an airport body search has added the expression “Don’t touch my junk” to our lexicon, and it’s also raised questions about protecting the constitutional rights of people who fly.
SAN DIEGO The refusal of a San Diego passenger to submit to an airport body search has added the expression “Don’t touch my junk” to our lexicon, and it’s also raised questions about protecting the constitutional rights of people who fly. But the courts have already answered those questions, and body searches at airports are legal.
John Tyner, the passenger, became a national celebrity by refusing to have a body scan or a pat-down at Lindbergh Field. Since then his action has taken on political meaning, and it’s been seen by lots of folks as an act of civil disobedience in response to a violation of his civil rights.
A cartoon by syndicated editorial cartoonist Michael Ramirez suggests passengers have to remove their 4th Amendment rights, along with their shoes, when they go through airport security. The 4th Amendment guarantees freedom from unreasonable searches and seizures.
Tyner keeps a blog in which he describes the action of the Transportation Safety Administration (TSA) as an “erosion of liberty,” adding that requiring body scans and pat-downs are “arguably unconstitutional.”
But attorneys and security professionals tell me that argument has been settled to the contrary. Daniel Yeager, a professor at California Western school of law, says airport body searches would violate the 4th Amendment if they were done in a different setting. But case law says airports are "special needs" places where safety requirements override constitutional guarantees.
“The rules are somewhat relaxed so that the government’s mission of making air travel safe can be affected, without being hamstrung by probable cause and warrant requirements,” said Yeager.
Several judges have written that the guarantee of rights should not turn the Constitution into a "suicide pact."
But there is a point on which both Yeager and Tyner agree. This relates to the question of whether a passenger’s decision to travel by air means that they’ve consented to be searched… that they have voluntarily relinquished their 4th Amendment rights.
Tyner says in his blog “there is no comparable alternative to flying for traveling long distances.” In other words, it’s unreasonable to expect people to opt out of flying in order to preserve their rights.
Yeager adds, “If you want to travel, it’s hard to say you have really consented to the search. It’s more like something you’ve acquiesced in. Like saying, ‘I have to put up with the government doing this stuff.'”
Even so, Yeager says an airport is a special-needs area that allows the government to modify individual rights. And it turns out most Americans agree that’s a sensible approach. A poll by ABC News and the Washington Post shows that nearly two thirds of Americans support the use of full-body X-ray scanners in airports to provide travel security.
So while John Tyner may be a hero to some, most people just want him to go through security and get on the plane.
PS: A list of possible new slogans for the TSA have been circulating on the Web.
-Can’t see London, can’t see France, until we see your underpants.
-Only we know if Lady Gaga is really a lady.
-Don’t worry. My hands are still warm from the last guy.
-It’s not a grope, it’s a freedom pat.
You get the idea.