Update: if you’re going to comment on this post, make sure you understand that the point I’m making is *not* that the TSA’s actions make us safer. Take the time to understand what I’m saying, which most commenters unfortunately didn’t.

I tried hard to resist the temptation to react to this, but the hype has become too strong and the debate seems to be completely one-sided. So here are my thoughts.

First, a quick summary for non-American readers who might not be aware of the “TSA controversy”.

In reaction to the latest terrorist plot that involved printer toner cartridges, the Transportation Security Administration recently decided to increase their scrutiny in the security lines of airport by including more “private” searches. In short, if you get picked at random in the line, you have the choice between two methods of advanced searches, and this “private patting” is one of them.

A lot of people immediately expressed concern about what they called an “invasion of privacy”, which is fair. Where things when downhill is when people started calling this new measure “abuse”, “molesting” and “unconstitutional”. In particular, this person decided to refuse to be searched and then made a big blog post about it.

The most ridiculous claim is that this new search “violates the Fourth Amendment“.

People making this claim need to read up on US laws.

Here is the short version: the Fourth Amendment protects citizens against invasive searches performed by the government or law enforcement agencies, not private entities. And airlines are private entities.

Yes, I know, the TSA is a government agency, but the contract that you sign when you buy a plane ticket is with the airline, which is a private agency. The terms of that contract are therefore not law, and the Fourth Amendment is not applicable.

Imagine that I’m throwing a party at my house and I tell you that if you come, I’ll search you before you can enter. Am I violating your Fourth Amendment by doing so? Of course not. You can refuse to be searched and you won’t get arrested if you do.

The reason why the Constitution and its amendments exist is because what it applies to is the Law of the Land. Anyone who lives in the US has to follow the law or they can be arrested. Because the consequences of breaking these rules are so severe, the Constitution codifies limits to the reach of these laws and also includes basic rights that will always prevail when they conflict with the law.

Here is what the TSA has to say about it, from their web site:

Courts characterize the routine administrative search conducted at a security checkpoint as a warrantless search, subject to the reasonableness requirements of the Fourth Amendment. Such a warrantless search, also known as an administrative search, is valid under the Fourth Amendment if it is “no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, ” confined in good faith to that purpose,” and passengers may avoid the search by electing not to fly. [See United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)].

When you refuse to be searched, you are not breaking the law, you are breaking the terms of a contract. It’s perfectly legal and quite common, actually. It’s not civil disobedience, it’s posturing at best and link baiting at worst.

Refocusing the debate

Now that we’ve cleared a few misconceptions, let’s focus on a few positive aspects.

We should question what the TSA is doing. Always. It’s healthy and it’s our right. Do these extra measures make us safer? Is everyone’s privacy respected? Are we making exceptions for exceptional situations? What are these exceptional situations? Is faith grounds for a waiver? Is the TSA transparent enough?

What concerns me about the TSA is that they seem to be reacting more than being proactive. They seem to only bump up their safety measures after a terror attack has happened or has been foiled. First, there were shoes, then there were liquids, and now it’s full body scans. Maybe in some ways, they’re not going far enough? Or maybe they’re going in wrong directions and always playing catch up?

Travelers want more security, but when they get it, they complain. What’s the right thing to do?

Benjamin Franklin’s quote comes to mind:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

I could not disagree more.

I am perfectly comfortable giving up some liberty to gain safety. And if you have ever flown on a plane, you obviously agree even if you never realized it. But in doing so, I demand a very specific description of the kind of safety that I gain and I also want to be fully informed of the kind of liberty that I’m giving up. The TSA could certainly score higher in this department, such as explaining in more details in what ways the new searches make us safer.

FAQ

How do you feel about the fact that children get searched this way as well?

I’ve heard a few isolated reports that this is happening and it seems to upset quite a few people.

Maybe it is happening, or maybe it will. I can’t say I’m very happy with the idea, but let me ask a question back: imagine that in the near future, a plane blows up and we find out that a child was carrying the bomb. Would you still find that searching children is outrageous? Would you feel comfortable flying on a plane where children are not being searched?

Should we wait for something like this to happen before we try to prevent it?

Luckily, nothing such has happened, so maybe the TSA is just thinking ahead and doing exactly what I was hoping it would a few paragraphs above?

The poster in the blog was threatened of a civil suit, what do you think about that?

I’m not a lawyer, but this sounds excessive to me and maybe unjustified intimidation.

Having said that, I can’t help but put myself in the TSA agents’ shoes in trying to deal with this person. He might not be a terrorist but he’s certainly acting in a way should concern anyone in charge of security at that airport. I can imagine that everybody was a bit on edge during this incident. I also find it completely normal that this person would be escorted out of the aiport under close guard after this incident.

At any rate, this “civil suit” thing was certainly not the point of his post, just an unexpected benefit (from his standpoint, where all he wants is attention and traffic).

Anything more to add?

To be honest, I’m surprised to find myself on this side of the debate. I’m more the kind of person who is very aware of his rights and eager to see them respected and enforced. But the reactions I have read to this whole debate have been so uniformly onesided and motivated by angry and unreasoned feelings than reason that I just couldn’t take it any more.

If you are going to comment, please avoid profanity.