For those who haven't heard, two idiotic Harvard students have filed a suit against the TSA for their invasive airport screening practices. JJD rightly points out that these two are attention whores who are wasting everyone's time.
I wholeheartedly agree with that, but I have bigger concerns. This lawsuit, first of all, isn't necessary; there are already numerous other lawsuits filed and I have to believe the ACLU is poking around for a choice test case if they haven't already filed one, especially since they had a good outcome against the TSA the last time they filed. Even if it were necessary, law students are in no way capable of expertly litigating this thing. It's hubris to think otherwise. That type of hubris destroys the public image of lawyers and lawsuits in general as people who would rather have fifteen minutes of fame than doing what is proper in the name of justice.
Most importantly, based on samples articles that I've seen, I don't think these regulations comply with the Fourth Amendment. Generally, there's two rationales given as to why these invasive things would be Constitutional: (1) the airline passenger consents and (2) they're reasonable as proper administrative searches. I think both of these views are faulty.
Consent is restrained by scope. It'd be very hard to argue that individuals consent to the more advanced applications of these screenings, such as what happened in this case. If we remember consent also has a "time" component and the argument is destroyed; the consent is to a brief check, not a 30+ minutes detainment on less than reasonable suspicion.
Traditionally, these are upheld as administrative searches (indeed that's the TSA's justification), similar to a roadside DUI check or an inventory search at a jail or police station. The problem is that the only reason suspicionless detainment is allowed is because police officer discretion is extremely low and the invasion of the stop is de minimis. But here, we have a high amount of invasion (both in terms of invading privacy and in the length of detainment) and the risk of discretionary enforcement is extremely high.
This type of situation is exactly what the Fourth Amendment was designed to protect against, as if a writ of assistance has been given to TSA agents to track down terrorist instrumentalities at any cost. The only difference is this silly argument that one can choose not to fly. In a world where multinational commerce is a way of life and Americans have to fly to get to all but 2 countries (and one of our states is only readily accessible by airplane), I find this explanation unsatisfactory. We have a right to travel. Given our modern reality, subjecting someone to suspicionless groping to fly seems unreasonable.
Before anyone goes spouting off on how it's necessary to catch the evil terrorists, I'd like to direct you all to read Kyllo v. U.S. The Supreme Court has been crystal clear in protecting the most intimate spheres of privacy from warrantless searches. There, the police couldn't turn a thermal imager on a drug dealer's house. Here, non-police are turning an x-ray on people's crotches and sticking their hands on people's privates, all so someone can sit on the next plane to Tulsa. If 5 justices didn't want to budge to stop large-scale drug trafficking, I would be shocked if they suddenly bought the argument that one terrorist attack gives government administrators the power to probe.
But I have no faith that the Harvard students can navigate that by themselves. And because most people see attention-grabbing suits like this as meritless by default, I'm worried their suit will harm public sentiment against people who are filing legitimate lawsuits; after all, there are people who think these searches are acceptable in the name of safety, Constitution be damned, and the government itself is going gestapo on people who speak out against them.
It's a problem, for sure, but random Harvard idiots filing lawsuits on generic standing is not the answer. Furthermore, even though I think these violate the Fourth Amendment, the courts shouldn't even be the first-choice response. Quotations like this annoy the heck out of me:
“I see the lawsuits as part of a genuine citizen rebellion against invasive and ineffective airport screening,’’ said John Verdi, senior counsel at the privacy information center.
"Genuine citizen rebellion" is not something the Courts are really best at answering. They're much better at solving problems of specific individual rights being violated. If you have widespread citizen rebellion, why don't you take it to Congress? Better yet, why don't you work to amend the Constitution?
But these Harvard students would rather file a lawsuit. If I were God of Harvard, I would expel them to prevent Harvard's reputation from being damaged by association. Unfortunately, they likely will graduate from there and find it easier to find work than lower-ranked students who lack their misguided hubris, understand their own limitations, and respect proper legal and political processes against advancing their sense of inflated self-worth.
No comments:
Post a Comment