The TSA is violating our Fourth Amendment rights

Brandon Macsata Contributor
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As the executive director of the Association for Airline Passenger Rights (AAPR), as well as a passenger who has personally experienced just about every security screening technique employed by our federal government — including enhanced full-body scanners and aggressive pat-downs, to name a few – I feel compelled to address the recent TSA flap.

Just prior to the busy Thanksgiving holiday travel weekend, AAPR took a strong public stand against the security measures being used by the Transportation Security Administration (TSA), which we would like to further explain. AAPR concluded that the enhanced full-body scanners and aggressive pat-downs, among other things, violate privacy rights protected by the U.S. Constitution’s Fourth Amendment (scanners and pat-downs), pose potential medical risks to passengers (scanners) and divert limited manpower and resources from other more effective security screening measures. AAPR’s position was fortified when TSA Administrator John S. Pistole brushed aside the legitimate concerns expressed over privacy rights by defending his agency with belittling statements towards groups like AAPR. The arrogance of TSA led AAPR to support the National Opt-Out Day. It is a decision that we stand behind!

Ask yourself this simple question: Would you deem it acceptable if, when walking down the street in your hometown of Washington, DC, you were randomly stopped by law enforcement and told that you had to undergo a pat-down or strip search? What would your reaction be if, when asked why, law enforcement responded that it was to ensure the “safety and security” of the community and the people around you? Fortunately for us, it would never happen in the United States, at least not without probable cause by law enforcement. Why? Because those are the rights afforded to people in the United States — regardless of their citizenship — under the U.S. Constitution’s Fourth Amendment.

So it begs the question, why is it acceptable for TSA to engage in the very same practice, all under the guise of protecting the safety and security of the flying public? The answer is simple: It is NOT acceptable! And according to Zogby International, 61% of likely voters oppose TSA’s new security measures, while 48% said they would probably seek alternatives to flying. Is this an issue where the U.S. airline industry and passengers can agree?

Interestingly enough, only the government and the companies manufacturing the enhanced full-body scanners seem to be supportive of the security screenings. Joining the chorus behind airline passenger rights groups has been the American Civil Liberties Union (ACLU), unions representing airline pilots and flight attendants, disability rights organizations and others groups. Further evidence that TSA is taking the wrong approach is the mere fact that far-right conservatives and extreme-left liberals are singing the same tune against the security screenings.

Benjamin Franklin once said, “He who sacrifices freedom for security deserves neither.”

Apparently, members of Congress agree with our founding fathers, as they are lining up against TSA’s new security measures. On November 18th, Rep. John J. Duncan, Jr. (TN-2) told the Knoxville News Sentinel, “The American people should not have to choose between having full-body radiation or a very embarrassing, intrusive pat-down every time they fly, as if they were criminals.” Rep. Duncan also called into question the lucrative nature of the contracts being secured by some of the private companies represented by former U.S. Homeland Security Secretary Michael Chertoff.

According to The Hill, “Linda Hall Daschle, a former administrator for the Federal Aviation Administration and wife of ex-Senate Majority Leader Tom Daschle (D-S.D.), is one of L-3’s best-connected lobbyists.” L-3 is one of several x-ray imaging firms that won more than $160 million in contracts from the TSA, and Daschle, being a Washington elite, will not let America’s growing contempt for the machines change her position on taking money in exchange for needlessly violating privacy. Said Daschle, “Lobbyists are not the problem. Terrorists are the ones who can do harm to innocent victims.” Perhaps the wife of tax evader Tom Daschle should submit herself to the same reassuring display of self-humiliation as Peter Kant, executive vice president at x-ray machine maker Rapiscan, who stepped into one of his own machines and allowed a reporter to view the monitor.”

The next day, Rep. Rush Holt (NJ-12) penned a strongly worded letter to TSA Administrator Pistole, asking some very tough questions.

Only days later, on November 22nd, Rep. Tim Murphy (PA-18), who is leading the only bipartisan congressional effort to ensure that TSA procedures are closely examined, monitored, and vetted by Congress, said the following in a press statement: “Transportation security guidelines must be rigorous. But when these guidelines cross the line and result in the public degradation and humiliation of airline passengers, those policies must be examined. The measures by which the federal government takes to protect its citizens cannot eradicate the liberties that it aims to protect.”

Rep. John Mica (FL-7), who will soon chair the House Transportation and Infrastructure Committee, which has jurisdiction over this area, has been extremely critical of TSA. Calling TSA a bloated federal agency that has ignored the privacy concerns of passengers, Rep. Mica is urging airports nationwide to find alternatives to TSA. At this time, AAPR is evaluating Rep. Mica’s proposal.

But CQ Roll Call Daily predicted a different outcome, when the online publication reported: “The break in the lame duck that started over the weekend gave members of Congress a head start on the Thanksgiving travel rush — and has given many of them some firsthand, early insight into the new era of full-body scans or intimate pat-downs at the airport. Their early reaction is a bipartisan displeasure that mimics that of their constituents. But there’s no chance that their annoyance will be translated into any legislation that would relax the procedures. There’s very little political benefit to members of Congress, in either party, pushing too hard for the view that traveler privacy should trump vigorous security.”

Unfortunately, debating security versus privacy protections is based on a false premise! Israeli airports, which are in the middle of an international terrorism hot spot, do NOT use enhanced full-body scanners, or aggressive pat-downs. They use profiling (note: profiling is not based upon race or ethnicity, but rather behaviors). It is interesting to note that there hasn’t been a single flight departing out of an Israeli airport which has resulted in a terrorist attack! Not one!

What’s more, remember those annoying instructions to remove your shoes prior to going through the metal detectors? Well, all other industrialized nations have stopped requiring that passengers take off their shoes — except for the United States — because it has been determined that having passengers take off their shoes does not improve security. Yet, TSA continues to require passengers to remove their shoes. Security experts have also called into question the effectiveness of random searches of passengers after they pass through the security check-point, just prior to boarding. But TSA still conducts those searches, too!

Furthermore, if the enhanced full-body scanners are such an important part of TSA’s security measures, why were they not being used at all during the height of the holiday travel weekend? According to tweeting travelers, TSA deactivated body scanners at some airports. The tech blog Gizmodo posted comments from travelers in Columbus (Ohio), Los Angeles, Seattle, and San Jose (for starters) reporting that the x-ray machines so necessary to our survival were “roped off” and “not in use.”

AAPR will continue to monitor the developments and controversy surrounding TSA’s new security measures!

Brandon M. Macsata is the Executive Director of AAPR and Managing Partner of The Macsata-Kornegay Group, Inc