Pat McCann, a famous 26-year-old super model, was traveling to New York for a lingerie catalogue photo shoot. While standing in line at airport security, Pat overheard a TSA employee tell another passenger that their new full-body scanner was one of 400 recently deployed around the country. Affectionately dubbed a “virtual strip search,” the new scanners silhouette the passenger’s nude body. Because McCann refused to submit to the “virtual strip search” scanner, she was given the only alternative. TSA had an “enhanced” pat-down procedure (by someone who just claimed to be one of her biggest fans!) that includes a security worker touching the inside of her legs and along the cheek of the buttocks, as well as the breast and genital areas. McCann protested that their demands to touch her “junk” were searches that violate her Fourth Amendment Constitutional rights against searches without probable cause. Is she right?
Probably not. The Fourth Amendment protects Americans from unreasonable search and seizure by the government and provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The operative word is “reasonable.” With such a murky standard, passionate debate thrives. In a post 9-11 world, courts are forced to balance the personal privacy of the individual versus public safety of the crowd. Given that terrorists now hide bombs in or on their bodies undiscovered through less invasive means, the courts typically find that airports are “special needs” places where safety requirements override the “usual” constitutional guarantees, opining that the guarantee of individual rights cannot permit the constitution to become a “suicide pact.” Although one might argue that the TSA has super-constitutional authority to search without probable cause, the enhanced security measures are probably not so “unreasonable” as to create a Fourth Amendment problem. Moreover, while Americans may have a “Constitutional” right to privacy, there is no constitutional right to fly. McCann can still travel by means other than by air. However, when she buys her airplane ticket, she consents (some say “acquiesces” would be a better word) to these types of searches.
One final note … if you just can’t bear the thought of being ogled through TSA’s superman x-ray glasses, enterprising businesses have created underwear on which the Fourth Amendment or word “pervert” are emblazoned with metallic ink which your scanner operator will be able to easily read. See http://www.geek.com/articles/geek-cetera/protest-full-body-airport-scans-with-4th-amendment-underclothes-20101127.