06 January 2011

How to boil (control) a frog (society)

This morning I got a call from a radio station in Phoenix, AZ asking about a ruling from the Ninth Circuit Court of Appeals in which the court held that a strip search and pat down of a male inmate by a female officer was unconstitutional under the 4th amendment. The interviewer was interested specifically in how I thought that this ruling relates to the TSA's warrant-less searches at the airports. I told him that in light of the Ninth Circuit's ruling in February of last year upholding strip searches of prisoners, generally, as constitutional, this case would probably not be very meaningful. The only similarity between this (current) case and the TSA procedures is the fact that the person sitting in the "other room" looking at body scans may not be of the same sex as the person being scanned. I have a feeling, though, that in its traditional deference to executive claims of national security, the court would not find the body scanners to be an unreasonable search because of the "anonymity" between the TSA agent and the person being searched.

A much better point, I thought, to come out of the interview was that people at the airport are treated virtually the same way as are inmates in the prison system. That is, people who have done nothing suspicious other than decide to travel by air are subjected to exactly the same search procedures as people who have broken the law, been arrested, been tried, been convicted, and been sent to prison. Here is a description of the search at issue in the case decided this week, and it sounds almost exactly, though this description is more explicit, like what was described to me when I tried to fly two months ago.
...the cadet touched the inmate’s "inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts" and "moved his penis and scrotum in the process of conducting the search"
I can't resist pointing out, somewhat tongue in cheek, that inmates get this treatment for free. Airline passengers have to pay for it.

When asked if I thought that this comparison (airline travelers to prison inmates) would irk people enough to get them "fired up" about the searches they are forced to endure at the the airport, I answered that my experience has been that people are ruled more by their fears and desires to feel safe than by any desire to be "free" (as in freedom). And until people find the searches to be "unreasonable", it is unlikely that anything will change or that any relief will be found in the courts, given the test employed by the courts as created by Justice Harlan in Katz v. United States, 389 U.S. 347 (1967).

One of the things that the interview touched on but didn't delve deeply into is this "reasonable" test. (On a separate but related note, I think there is an argument to be made that the founders of this country considered all searches and arrests without warrants to be unreasonable and that "unreasonable" is not a term that was meant to be reinterpreted with the passage of time, but I digress. That's for another post.) The second prong of Justice Harlan's test is whether "society is prepared to recognize that this expectation [of privacy] is (objectively) reasonable", and it would seem that society is not prepared to recognize a person's privacy at the airport. Be that as it may, what "society" should consider in making that judgment is the ratchet effect. Governments rarely relinquish power that has been given them. Societies, in a similar manner, judge tomorrow's events by today's, not yesterday's. What I mean by this is that the standard by which tomorrow's searches are measured is today's searches. A little over 10 years ago, one could get on a plane with nothing more than a ticket. Then people were required to show identification. Then they had to take their shoes off and then heavy coats. Then people were subjected to "normal" pat downs. Now, they are subjected to a virtual strip search and/or an "enhanced" pat down. Imagine if people went one day from anonymously boarding a plane to the next day having to show identification, take off their shoes and heavy clothes and being subjected to a virtual strip search and/or an "enhanced" pat downs. People would never have gone for it. Instead, they are being slowly boiled like the proverbial frog and don't realize it. Even if the war on terror were to come to an end someday, which it most assuredly will not, these searches won't go away. They'll be cemented in society's collective mind as "reasonable".


Unrelated to the interview, I found it interesting that the court ruled cross-gender searches "unreasonable" under the 4th amendment. The 4th amendment only addresses the search, not who performs it, and the Ninth Circuit had already ruled searches of this type to be constitutional. It seems to me that the claim would have been better brought and adjudicated under the 8th amendment. Given that the inmate claimed that the search was humiliating and caused psychological trauma, the argument that he was subjected to cruel and unusual punishment would have been more appropriate. It seems to me that the court contradicted itself, if only slightly.


  1. "I can't resist pointing out, somewhat tongue in cheek, that inmates get this treatment for free. Airline passengers have to pay for it."

    HAHA, good one :)

    Regarding it being "unreasonable" for cross-gender searches... what would be considered "unreasonable" when a homosexual is being searched (the SAME gender performing the search)?

  2. a friend of mine said he is going to request a pat-down from a female TSA member and say, "while it may not supposed to be, i consider these pat downs to be very sexual. so i want a girl to do my pat down, not a male."

    we'll see what happens there.

  3. I've never seen this before today, and I thought of you as I listened to this spoof. This is not to say that I think of any of this lightly. Just a bit of levity.

    Grandma Got Molested at the Airport

  4. So many questions, so little answers. Thanks for your great posts. My 12-year old daughter and I had planned to "wait out" the new procedures before taking a trip, but have come to realize that most sheeple are just accepting it. So, now that we are stuck with it, how to cope? We have discussed going in with our bathing suits (covered by coats until we place them on belt of course). Not as protest, but perhaps because enough of our skin will be visible (if suits are skimpy enough) to avoid being touched. BUT what is too skimpy vs. just right? Will we be touched anyway? Will we get in trouble for our apparel? I am not young and beautiful, so a bathing suit may be offensive to some :( Can we leave the airport instead of being touched? When is the fine applicable?

    So, with no helpful answers, and a mainstream media that seems to have moved on, we are left without hopes for vacations. Or visiting family across the country, ever. Or taking a job that requires travel (which I used to do). Or even attending professional conferences (which I am expected to do). It is disheartening. Unless you are rich enough to afford private air travel. But who is, in this economy? Or who can afford to gamble on a plane ticket in the HOPES that they will be allowed to walk through the metal detector? And then lose out on the money spent for the one vacation every five years that we can afford? Keep writing and god bless

  5. Good! I hope more people sue the TSA when things like this happen:



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