The problem is, it doesn't violate the constitution. I'll give a brief rundown of some of the problems of challenging the constitutionality of TSA. I'm breaking my rule of no more than 1/10th of an hour (6 minutes is a standard billing unit), but I'm only saying it once. I will not respond to any post even good questions since every time I say what the state of the law is people act like I am personally responsible for the American legal system. They think I and the law are one in the same. We aren't.

I will cover three major issues. Consent doctrine, improper method, and fundamental right.

Consent:

You have consented to be searched including a pat down. You have waived your 4th Amendment rights in this specific situation, specific time, and specific manner. Consent must be given voluntarily, knowingly, and intelligently. Voluntarily means you bought your ticket of your own free will, or in other words, you voluntarily put yourself in the position to be searched. Private actors, your employer, don't have to meet this standard because they don't have to follow the 4th Amendment. Knowingly and intelligently just means you recognize that you may be searched and know what the search may entail. These are all the disclaimers that you click check boxes for or sign off on. It must be noted that an argument that you didn't realize just how invasive it would be is a improper method argument not consent.

Your main problem with attacking consent is that you cannot attack it in a vacuum. That is, attack consent in relation to TSA and you attack all consent laws based upon the voluntary, knowingly, and intelligently standard. There is no TSA specific consent doctrine. You have two ways to do this. First, attack the consent doctrine itself. Basically, make an argument that constitutional rights cannot be waived. Say that even if done voluntarily, knowingly, and intelligently rights cannot be waived. This argument has no chance. However, if it sounds good then contact your representative to pass an amendment. At first blush it sounds good, but I'd like to know more about the overall ramifications before pushing it.

Your second line of attack is arguing that purchasing a ticket and arriving at the airport does not meet the proper standard. Better than the first option, but still a tough row to hoe. The voluntarily, knowingly, and intelligently standard is objective. That means the court looks at affirmative steps that constitute consent. Knowing you may be searched you search for a ticket, buy a ticket, register an account, input credit card information, click check boxes affirming you know about the possibility of search, you ultimately buy your ticket, arrive at the airport, check in with the airlines, and then head to the security check point. These are all affirmative steps. At any point you could have revoked. Compare with a Miranda waiver. Police put a piece of paper in front of you, you read it, then sign. You must differentiate the affirmative steps for the Miranda waiver with buying a ticket. I don't see how this can be done. There is much more pressure to comply in front of police than in front of your computer.

Bottom line, separating consent doctrine as it applies to TSA from other law enforcement or government agencies is almost impossible, and invalidating global consent doctrine is a non-starter.

However, just because you have consented to a search does not mean it can be performed in any manner. It must be done in a proper method.

Improper method:

This issue relates to the claims that TSA searches are "groping," "sexual molestation," or any other criminal charge. First, TSA agents do not have government immunity from these charges. Since they are outside the framework of their job they cannot be immunized. Second, proper TSA pat downs are not criminal acts. TSA pat downs are modeled after other government agency or law enforcement pat downs (the AIT and backscatter machines follow similar issues. Though the backscatter, if proven harmful, would be moved to its own issue separate from the other searches). Specifically, the standard pat down is similar to what parole officers administer to juvenile offenders, and the resolution pat down is similar to a police pat down. That means, again, you have two methods of attack. First, claim all pat down searches are criminal. Second, that TSA pat downs are different from all other agency or law enforcement searches.

Your first type of argument would fail just like the global consent argument. You're attacking too big a piece of criminal law. If police can't pat a suspect down then what can they do? A quick side note, police need either consent, reasonable suspicion (certain cases only), or probable cause to search. As stated above, TSA searches fall under consent. I don't see any way a court would make police searches illegal.

Your second type of argument is better but still flat. TSA searches aren't new. They are based upon other agency and law enforcement searches. You would have to differentiate other agency and law enforcement searches from TSA searches. Those claiming TSA searches to be molestation or any other criminal charge that would be your difference. Basically, you would say police searches are OK because the standard procedure does not molest the suspect. TSA searches are improper because the TSA standard procedure is molestation. This claim is irrespective to individual and is a global claim. As stated above, individuals that do improper pat downs, outside of TSA procedures, are ripe for criminal charges. But getting an individual wouldn't invalidate TSA unless you can prove that the person's actions were in line with TSA procedures. Further, even if you win on this count it just means the agency can adjust its procedures. However, a scandal like this and TSA would just be eliminated.

Improper method is probably a better argument then consent, but you still have a problem with the parallels with other agency and law enforcement. Are TSA searches really that different from other searches? From what I gather from law enforcement friends they aren't. If I were suing TSA I would definitely look into this. I'd get the official operation procedures but then research actual procedures. The standard de jure vs. de facto implementation. I don't have to prove that the regulations specifically violate improper method; I just have to prove that the official implementation does. You still have the sticking point of showing that even if the de facto implementation violates it's still different than de facto implementation that has been held constitutional on the law enforcement side. Again, you aren't attacking TSA alone.

Fundamental right:

Flying is not a fundamental right. Your ability to travel is a fundamental right as stated in Heart of Atlanta Motel. But that case didn't hold that your preferred or more efficient method of travel was a fundamental right. I would attack here. Justice Scalia in the thermal imaging case (holding police use of thermal imaging cameras to find pot growers an illegal search) put dicta in basically saying he would adjust the law as technology improves. In that case he said if thermal imaging became ubiquitous it may no longer be an illegal search. That would be my parallel. That is, airline travel in the last few decades has become ubiquitous in a increasingly global world. US Citizens no longer are satisfied to stay in the US. The fundamental right to the ability to travel must include the ability to travel outside of the US. Couple that with increasingly limited vacation time resulting in really no way to travel by car then boat to participate in such international travel then air travel must be fundamental. Because air travel is fundamental then TSA searches must pass strict scrutiny and be the least invasive and least discriminatory alternative. That is, TSA can only implement procedures that are absolutely necessary to achieve their goal. Most of TSA wouldn't meet this standard. Almost nothing ever does. The Korematsu (WWII concentration camps) did, but that's because the court deferred to the military. That case wouldn't pass today.

The problem with this is 1) differentiating air travel with all other modes of travel and 2) all the other laws and regulations implicated by this decision. First, you'd have a hard time getting all modes of travel to be fundamental. Every law regulating or licensing would immediately come under fire. And meeting strict scrutiny is hard. It would cause chaos in transportation law. Second, other laws implicated like passports, customs, and other rules would have to sustain a strict scrutiny attack. I think 1 actually wouldn't be too hard. In today's world air travel really is the de facto option for some destinations. I wouldn't have people that want to fly from LA to Las Vegas as plaintiffs, but I would if they refused to go to Australia or Africa because of TSA and an impracticability to drive then boat. The argument isn't that air travel is more efficient, the court won't care, but that air travel is the only de facto option to get there. I think the government would push number 2 really hard, but I doubt the court would care too much about that.

The fundamental right is probably your best bet, and it would change TSA over night. Pat downs would be gone and all that would be left would be x-ray scanners, document checkers, then the AIT for passengers that continually set off the scanners. Everyone else just goes through. I doubt they would even allow random screening.

I've whittled things down to basics, but that's what your facing. You cannot challenge TSAs constitutionality without facing a lot of other areas. You can't attack in a bubble unless you can differentiate TSA from other agencies and law enforcement. So you're going after global consent doctrine not just consent to TSA. You are attacking the method of pat down searches of all government agencies and law enforcement not just TSA.

I know, people will attack me as being a "dictatorship apologist" and being a yah! rah! TSA fan, but I'm not. I want TSA to go away too, but I can't go into court and yell it's unconstitutional because I say so or because slashdot says so. You can't ignore Supreme Court precedent just because you don't like it or don't know about it. Ever since Marbury v. Madison was decided the Supreme Court has been the arbiter of constitutionality. In the court system you have to work within their framework just like this appellate court did. What you need to realize is that claiming TSA is unconstitutional is not as easy as saying "read the Fourth Amendment." You must consider Supreme Court interpretation as well.

I do agree on this. I shouldn't make it sound like I believe America will stand by law no matter what. We don't. But I would point out in your examples that the people they were protecting were rich corporations and the highest echelon of the executive branch. I doubt a TSA agent would get the same (in my opinion) illegal protections. On one hand it's good. No one is above the law and the agent should be hit for improper searches. But it's also a sad example of how our system treats people differently.

Well, I disagree with your assessment. There is no way a court would throw a clear case of sexual molestation out because it's an administrative search. An admin search lowers the evidence bar but doesn't change the conduct allowed. A gas inspector can't come to your home, claim to want to look for gas leaks, then rummage around for illegal things. You have two different issues here. First, was the search constitutional, and second, was it properly performed. A judge wouldn't throw out a case just because it was a constitutional search even though improperly performed. Properly issued police warrants can be thrown out because the warrant was improperly performed. For example, looking in kitchen drawers when the warrant is for a person. Continuing a search after the warrant's purpose has been completed.

TSA is shielded by the law just like everyone else. If you can't make out all elements for your cause of action you won't win no matter who the defendant is.

They aren't unconstitutional because you consent. In other words, you waive your fourth amendment rights for this specific instance at this specific time. You can decline to waive but then can't get on the plane. The ability to travel is a fundamental right but the right to travel by air is not. These are not my personal statements but that of the US Supreme Court since the 1970s.

You can say it violates your fourth amendment rights but the SCOTUS says it doesn't. The only way you have a chance to get the Supreme Court to hold this as a fourth amendment violation is to convince them that air travel is a fundamental right therefore it gets strict scrutiny analysis which TSA probably wouldn't meet. Until then it gets rational basis which it does meet.

If a TSA agent sticks a finger in your girlfriends vagina press charges. That is not a proper pat down and is sexual molestation. And I'm guessing that story is false (or an extreme example) considering only women can do female pat downs. If a male was doing the pat down SOP has been breached making it an improper pat down no matter what happens.

A court wouldn't throw out a case on summary judgment if there really was sufficient legal evidence of groping. People are claiming that *all* pat downs are sexual molestation. My point was that if you bring a lawsuit claiming sexual molestation but can't prove all the elements required you will likely lose at summary judgment. A proper pat down does not meet the required elements. It's like the Republicans claiming voter fraud by ACORN. Except no one actually voted on the fraudulent registrations. One element of voter fraud is someone actually has to vote or make an attempt (I won't get into what constitutes an "attempt") to vote based upon that fraudulent registration. No vote no voter fraud.

I can only tell you what the law says when SOPs are followed. If you change the facts the analysis changes as well. Bottom line is the Supreme Court says you consent. The Supreme Court also says that pat downs are presumed to be legal. The plaintiff/prosecutor must prove that it was not. And this isn't a special case for TSA. The prosecution has the burden of going forward in all cases.

True, but I didn't say I thought it was morally or ethically correct. I just stated that the law does not consider TSA pat downs to be sexual molestation in all cases which was the poster's implication.

There are two major areas of response. First, TSA cannot legally do this. Second, TSA should not do this. The former is incorrect and is immaterial of how you or I think of the law. The latter is a personal opinion.

Actually, you are boiling it down to what I personally think. I told you what the current state of law is. So my argument boils down to "it's legal so it's legal." The person I responded to compared TSA actions to a clearly illegal action. TSA actions are not clearly illegal.

Your slavery analogy just further conflates something being legal with it being OK. Being legal is objective while being OK is subjective. The law is the law. If you think it should be changed doesn't make the law different.

TSA does have behavioral analysts that walk the areas. It was mentioned in the other OMG! article about TSA ripping people open that just had surgery. TSA stated they would put more behavior specialists out there to combat possible implant weapons.

Good idea. Acts of terrorism would surely eliminate the TSA.

The easiest answer is a boycott of flying. Once you start hitting the Airlines bottom line they'll get rid of TSA for you.

Terrible analogy. You take positive steps that are considered consent to be searched possibly by pat down. Telling someone you will grope her isn't a positive action by the person to be groped. Buying a ticket with the knowledge that you will be searched. Arriving at the airport. Entering a restricted (sterile, secure whatever they call it) area. Getting in line for a search. All positive steps that signify a consent to be searched. Up until you enter the secure area you can not be searched without probable cause. Once you enter you have consented and cannot unilaterally revoke.

And as far as it being "groping" or "sexual molestation" those are criminal charges with specific elements to be met. TSA pat downs, if done right, don't meet those elements or it would be illegal. Go ahead, sue one of 'em. It will be thrown out of court on summary judgment. Not because it's a government search, but because a properly done pat down isn't molestation. Same goes for police pat downs.

Yes, IAAL.

There is nothing that says the government has to go all the way the first time. The government can make incremental steps to achieve its goals. Lee Optical.

But, yeah, probably money.

And I meant to write "I'm just finishing my 2L year in law school and even I know this diatribe is rubbish." I didn't mean to make it sound like as a rising 2L I know everything.

The average citizen can question a judge's ruling all they want, but this article is a great reason for not doing so in public.

How about one word: Bullshit.

I'm just finishing my 2L year in law school and this diatribe is rubbish. The whole thing can be summed up as "I don't understand how the law works but here's what I think anyway."

I agree, completely, with the First Poster. Bennet's issue with the rental car analogy is his own personal limitation of knowledge. He asks rhetorical questions that can all be easily answered by an attorney. His critique reminds me of a creationist arguing over how an eye could develop. Just because you don't understand doesn't mean someone else can't.

Summary: this review is the Chevy Aveo of legal discussions: rubbish. Props to the Top Gear (UK) guys.

Yeah, this article sucks. Here's a summary for people who don't want to read it.

The Obama administration has a terrible piece of tax legislation ready that will tax cars by the mile.
But the administration says it's not theirs, hasn't been circulated in the White House, is full of ideas they don't like, and don't support it.
You forget what you just read? Good. The Obama administration has a plan to tax cars by the mile.

WTF? The White House just said it's not theirs and they don't like it. This is a classic writing technique. Squish information you want to minimize in the middle of everything. We tend to remember beginnings and ends so put your power wordsphrases there. You can see how well it works. Just read some of the comments that skip over the part that negates the rest of the article in favor of the beginning and end.