September 7, 2011
It has been ten years since the September 11 terrorist attacks, which prompted broad legal transformation in many areas. Throughout the month of September, we’ll be looking at some of those areas and their changes.
One of the most noticeable and immediate changes for Americans after the September 11 attacks came to airline security.
Immediately after the attacks, armed guards were posted in most airports and access to concourse areas was restricted.
Legally, the attacks prompted the creation of the Transportation Security Administration (TSA), which is responsible for regulating the safety of transportation systems inside, and connecting to, the U.S.
Created as part of the Aviation and Transportation Security Act in November 2001, the TSA assumed the role previously filled by private security contractors.
Many changes instituted by the Administration have met some opposition, and lawsuits along with it.
The earlier changes, such as the reintroduction of air marshals, the restriction of several potentially dangerous items on flights, and stricter airport screenings, were relatively uncontroversial.
This may be because of the close proximity to the time of the attacks and because citizens felt they were necessary, but that doesn’t mean that no one objected.
In 2003, John Gilmore, a noted civil libertarian, sued over the requirement that passengers must show IDs to board domestic flights, which he claimed was equivalent to an interstate passport (something the Full Faith and Credit Clause of the Constitution prohibits).
Gilmore lost the case, with the appeals court holding that the Constitutionally-protected right to interstate travel does not guarantee the right to travel by any particular form of transportation.
Aside from Gilmore’s, there have been virtually no significant challenges to the methods employed by the TSA.
At least, not until November 2010, when the TSA unveiled new screening procedures.
These new procedures – the notorious “full-body scan” and more extensive pat-downs to allow officers to search bodily areas such as the waistband, groin, and inner thigh – have garnered quite a bit of media attention.
They have, naturally, also spurred several lawsuits.
Many of these suits have focused on rampant abuses by TSA agents, such as one by a young Texas woman whose blouse was completely pulled down by agents during a frisk, exposing her breasts to the public (it made things much worse that the agents allegedly laughed and joked about it).
Most, though, do not challenge the validity of the new procedures.
At least one suit claims Fourth Amendment violations, however, and it seems to have made some progress.
The suit, by the Electronic Privacy Information Center (a civil liberties interest group) alleges that the procedures constitute unreasonable searches and seizures, and are therefore unconstitutional under the Fourth Amendment to the U.S. Constitution.
The suit’s aforementioned “progress” wasn’t on these grounds, though.
On July 15, 2011, the appeals court ruled that the new search procedures should have been the subject of “notice-and-comment rulemaking” (an administrative procedure) before being adopted, and remanded it to the TSA for that purpose.
On the other hand, since the procedures were “administrative searches,” and met the (very low) standards for such, they weren’t unconstitutional.
Because of that, the court refused to stop the procedures, citing the “obvious need for the TSA to continue its airport security operations without interruption.”
This “national security” justification coupled with the wide deference enjoyed by administrative searches almost guarantees that opponents of the government’s tactics won’t find victory through the courts.
The TSA shouldn’t feel relieved just yet, though.
Many notable scientists and doctors have expressed deep concerns about the health effects of the full-body scans.
Given the massive number of people using them (not to mention the fact that there’s very little choice in doing so), we can only hope that they don’t present any health risks.
If they do, though, the government could face a massive class-action lawsuit related to any adverse health effects of the scanners.
For now, it seems, all we can do is express our opinions, and trust that any increases in safety are worth our sacrificed liberties.