It was inevitable that TSA would face a high-profile Fourth Amendment challenge for its use of full-body scanners as a primary airport security tool. I'm a little surprised, however, that the challenge is coming from an active airline pilot, as we reported last week in this story. In standing his ground on Fourth Amendment principle, Michael Roberts has plainly placed his career in jeopardy and in so doing, has probably spoken for many in the airline industry, not to mention the traveling public. In reading over Roberts' lucid description of his experience with the TSA in Memphis on October 16, I didn't get the impression of a wild-eyed, paranoid anti-government whack job but of a principled person who has just had enough of the insidious creep of pointless government airline security procedures.
Roberts believes the full-body scan or alternate TSA pat down procedure is a clear Fourth Amendment violation, constituting warrantless search. He is pursuing a court challengea good thingbut may find no relief there. This issue has never been elevated to the U.S. Supreme Court but two circuit courts have ruled that an unwarranted search with no probable cause is allowable under something called the administrative search doctrine. Courts in the 1970s established this doctrine to allow searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose rather than evidence-seeking for a crime. But does this extend to intrusive body scans? Pat downs? How about body cavity searches? Or restraining subjects forcefully for the purposes of either? Where should the line be drawn? Roberts is angling for the Supreme Court to decide.
Meanwhile, his case may serve as a rallying point for a parallel political effort to push back against government excess through budgeting and administrative means. In a season of loud noisemaking, the Tea Party's clarion call is to reverse unwelcome government intrusion, excessive expenditures and erosion of basic rights and the TSA is all those things wrapped into one. Perhaps a Congressperson or two could spend less time worrying about wedge issues and make trimming back TSA's authority and reach a popular cause for legislation.
At the very least, there should be an independent office or agency whose sole job is to aggressively investigate and report on TSA employee and procedural abuses, with the authority to take action, including firing people. Furthermore, no uniformed airline crew person with proper identification should be required to do anything other than pass through a metal detector, if that.
For a political solution to take root, we as the flying public have to reject the political class's habit of using fear of terrorism as a cudgel to gain votes. In that sense, TSA is a campaign button for some pols. We have to understand that no security apparatus will protect us against all attacks and that there will be attacks and not just on and from airliners. In other words, in demanding our rights, we accept some degree of risk. We have to grow up.
I can't think of a single person in aviationprofessional pilot or otherwisewho thinks some kind of commercial airport security isn't necessary. Roberts said as much himself. I also don't know anyone who thinks that what we have now is anything other than an absurd charade which gets more costly, more intrusive, more aggravating and more pointless with each passing year. There's simply no collective will to tell the government we've had enough. Someone has to speak for the people and currently, no one is.
If nothing else, Michael Roberts has offered a wake-up call. It may take many more to finally have some action on this issue.