Jim Harper writes:
Writing in the Washington Post, George Washington University law professor Jeffrey Rosen carefully concludes, “there’s a strong argument that the TSA’s measures violate the Fourth Amendment, which prohibits unreasonable searches and seizures.” The strip/grope policy doesn’t carefully escalate through levels of intrusion the way a better designed program using more privacy protective technology could.
It’s a good constutional technician’s analysis. But Professor Rosen doesn’t broach one of the most important likely determinants of Fourth Amendment reasonableness: the risk to air travel these searches are meant to reduce.
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Although I agree with some of what Jim writes – especially about Congressional oversight and requiring cost-benefit analysis – even if there were a demonstrable risk to air travel, that doesn’t make an enhanced patdown/search of any one person reasonable. As I understand it, the Fourth Amendment provides each individual with its protection. An enhanced patdown might be reasonable in some circumstances without being reasonable for most people, and the one person for whom it is reasonable doesn’t justify stripping all others of their rights.
If TSA would ask us to believe that they really cannot tell who a terrorist is and therefore they have to treat everyone like a criminal or potential terrorist, then that is a major failure of intelligence and decimating Fourth Amendment protections won’t fix that.