By James Bowden
Ladies and gentlemen, meet your next civil libertarian crusader (and fellow blogger-raconteur), John Tyner. Tyner, it seems, is a bit weary of new TSA screening measures which require airplane passengers to submit to either a full-body x-ray machine or a pat-down. For readers who are also Star Wars fans, this is akin to being forced to choose between exposing yourself to a decidedly obnoxious robot in R2-D2 or getting a pat-down from the decidedly creepy humanoid C-3PO; either way, the TSA comes off looking as if it should drive a van with no windows and sport a wispy mustache.
It also seems that Tyner might have help from the writers from The Daily Show. Gems like, "I don't think that the government has any business seeing me naked as a condition of traveling about the country," and "If you touch my junk, I'll have you arrested" would liven up the driest court transcript. Which might be a possibility, because the TSA’s San Diego federal security director says that refusing to complete the screening process might land Tyner a $11,000 civil penalty, and cites a 9th Circuit Court decision in support.
Hrmmm. I’m just a humble corporate lawyer, so I don’t know much about “court decisions” and “Westlaw” and “citation” and the like, but a little Googling uncovered a law review article by someone who apparently does, and the footnote on page 397 tipped me off to an interesting, more recent bit of 9th Circuit jurisprudence which refused to reach the issue of whether a passenger may refuse more intrusive searches in certain circumstances. Methinks there may be a little less leeway as to what constitutes a permissible administrative search under the Fourth Amendment than the TSA is willing to admit (see? I read the articles I link to).
To be fair, my response to my first encounter with a full-body x-ray at the machine went a little differently than Tyner:
Me: “Cool, is that one of those full-body scanners?”
TSA Agent: “Yes.”
Me: “Hey, can you take my picture with it so I can see what it looks like?”
TSA Agent: “No.”
Me: “Come on. Why not?”
TSA Agent: “It doesn’t work.”
Me: [disappointed]
I am clearly not the average joe when it comes to this sort of thing. My attitude is that I’m more concerned with the government keeping track of my library books than I am with a government contractor getting a glimpse of the goods every here and there. But I digress.
The law review article that I linked to above suggests that the reasonableness of the search in the administrative setting changes with the public’s attitude towards the method of the search. [WARNING: CORPORATE ATTORNEY ATTEMPTING LAW REVIEW CITATION] Sara Kornblatt, Note, Are Emerging Technologies in Airport Passenger Screening Reasonable Under the Fourth Amendment? 41 Loy. L.A. L. Rev. 395 (2007). I’m thinking the TSA might have read the note, because they are certainly mounting a little bit of a publicity campaign around the incident by linking to a recent CBS News poll from their home page. Since I clearly am out of the majority on this one, I’m curious what Young Lawyers Blog readers think. Take our [sort of, OK not really] scientific poll and let us know –