Business Law II
(rights of travelers)

Jesse Parker

Dr. John Hutcherson
Park University Internet Campus

A course paper presented to the School for Arts and Sciences and Distance Learning in partial fulfillment of the requirements for the degree of
Baccalaureate

Business Law II
Park University
April, 2012
TABLE OF CONTENTS Page

INTRODUCTION 4

BODY 4

History 5

Who We Are and What We Do 5

Screenings 6

Body Scanners 7

How the TSA Circumvents The Fourth Amendment 8

U.S. vs Marquez 8

CONCLUSION 9
REFERENCES 10

INTRODUCTION

In the busy world there are many things to consider when it comes to people's rights and legal issues. The focus of this paper will be that of air travel, more specifically the new requirements set forth by the Department of Homeland Security and the TSA (transportation security agency). Since that horrible day on September 11, 2001 many new regulations have been have been set in motion in order to secure the travelers. The legal issues in which I will discuss will be that of the Fourth Amendment, which guards us against unreasonable searches and seizures. Many people felt that the new rules and regulations behind TSA violated our Fourth Amendment by the pat downs and new security scanners.
TRANSITION PARAGRAPH According to the TSA website the mission of the TSA is “the transportation security administration protects the nation's transportation systems to ensure freedom of movement for people and commerce.” TSA employees nearly, 50,000 officers, screen more than 1.7 million passengers each day at more than 450 airports. Another component since the TSA's inception was utilizing and deploying federal air marshals every day on domestic and international flights. While this is a small sample of what the TSA does each and every day this has led to many legal issues in which people have felt that they have been violated by these actions.
BODY

History

As stated previously the transportation security administration was created in the wake of September 11. This effort was placed to assist in strengthening the security of the nation's transportation systems. Contrary to popular belief the TSA not only works with airline securities but also with rail, transit, highway and the pipeline sectors as well as partners with law enforcement and intelligence communities to ensure the security and freedom over transportation systems

Who We Are and What We Do

TSA employees nearly 50,000 security officers who fill positions at over 450 airports nationwide. Along with the transportation security officers the TSA also employees roughly 2800 behavior detection officers at airports across the country, and to date has arrested more than 2200 people. Along with the officer's, TSA also utilizes more than 400 explosives specialists who specialize in aviation and multimodal environments. The TSA also began deploying federal air marshals on every day domestic and international flights in order to serve as a hands-on officer on board the flights. These individuals are dressed in street clothes and are not known by the other passengers. Much like other law enforcement agencies the TSA has also employed canine units who have been trained in explosive detection and have been placed in airports as well as mass transit systems nationwide.
Since their inception to TSA has gathered statistics regarding what it is they do on a day-to-day basis. In 2011 TSA screened approximately 1.7 million passengers each and every day and from that detected more than 1000 firearms. TSA is 100% responsible for air cargo both for domestic and international. Another key feature that TSA has deployed is the TSA's secure flight program which checks 100% of domestic and international flights to from and within the United States against terrorist watch lists, this stems from a recommendation from the 9/11 commission report. While these only list a few of the key features that TSA does on a day-to-day basis the one that is the topic of this paper and the topic of many discussions across the US are the 500 advanced imaging technology machines that have been deployed at airports nationwide. TSA has also installed new software on its x-ray machines that assist in detecting potential threats using generic outlines of the person for all passengers.
Screenings
The screening experience is pretty simple; everyone who travels must go through a TSA manned security checkpoints. These checkpoints are implemented and designed to prohibit travelers from carrying aboard, what is called prohibited items. All checked baggage is also screened at the checkpoints. Upon arrival at the checkpoint, you will be required to remove your shoes all jewelry, metal items, cell phones or anything else that might trigger a metal detector. These items are placed into bins. Depending on the airport, you may be subject to a walk-through metal scanner or a walk-through body scanner. The latter of these two is what has caused quite an uproar for many people due to the fact of the images that are taken and or stored on the TSA equipment. You have the right to opt out as a body scanner which then forces you into a pat down from a TSA same-sex agent. Many people feel that this is a violation of the Fourth Amendment. Many images have been made available on the Internet with regards to what the body scanner images appear to look like. Many of these images are very revealing which has caused the commotion. On the other hand many people feel that the pat downs are just as invasive. In order for the TSA agent to correctly perform the pat down certain areas of your body must be touched and/or felt to assure no weapons are hid. But the new policies you are required to either go through a body scanner or a pat down before you are allowed to fly. Not only have the body scanners caused an uproar in the images that are seen by the TSA agents but now there is also concern versus the amount of radiation exposure from these units. The Food and Drug Administration has approved both the millimeter wave units and backscatter units technology although there has been no long-term studies done on the effects of these units. But I digress as to the point of this paper is regarding the Fourth Amendment and travelers rights.

Body scanners

The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures, along with requiring any warrant to be judiciously sanctioned and supported by probable cause. Referencing the website entitled mobile technology at Suite 101 raises the issue that passengers are searched without probable cause which is unconstitutional. Another report by Mark Rotenberg quoted “right now TSA officials basically have a daylong peep show of passengers". While many advances have been made in the body scanning technology there are still those airports out there that use the near nude imaging technology that has caused the majority of the issues. At the end of 2011 TSA began using new technology on certain imaging devices that would allow a generic outline of the passenger instead of the near nude image. This technology has not reached the masses and comments have not been made as regards to the new technology. Many lawyers have stayed away from the Fourth Amendment lawsuits towards the TSA in the government stating that the case law is very bad, and that the courts don't want it on their hands if a terrorist gets through and causes mass deaths.
How the TSA Circumvents the Fourth Amendment

While many consider what the TSA does at checkpoints a violation of our Fourth Amendment the government and TSA are able to circumvent the Fourth Amendment by a ruling from the Ninth Circuit Court of the United States from 1973 which effectively suspends limited aspects of the Fourth Amendment while undergoing airport security screening. In the ruling by the Ninth Circuit Court on US versus Davis in 1973 gave TSA the power to search essentially any way they choose. In my opinion, this takes any complaints that people may have about the Fourth Amendment violation and throws them out the window. This is a case that has precedence and has already been taken to court and ruled upon. In my opinion the ruling from 1973 holds true to today stating that administrative searches are conducted as “part of a general regulatory scheme are the essentials of administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft". With these rules in place the Department of Homeland Security and the TSA both have significant legal latitude to perform the searches utilizing the techniques and technology they feel is needed to ensure safety aboard the aircraft's. While many people feel that this is unfair, the simple facts are the TSA and the Department of Homeland Security are simply doing their job to ensure that it travels among aircraft both domestically and international is as safe as possible.
U.S. vs Marquez

In another case filed in 2005 in the United States Court of Appeals for the Ninth Circuit Sergio Ramon Marquez, the use of administrative searches within the TSA checkpoints recovered 2 kg of cocaine that Sergio had intended to distribute illegally. In this ruling Sergio was making a case that he should not have gone under an administrative search that included a handheld magnetometer in addition to the standard walk through magnetometer. During the search he was extremely adamant and very irate at the fact that he was selected for a secondary screening. Any and the courts ruled on the side of the United States being that this was not an unnecessary search due to the nature of the search been within a TSA checkpoint. In my opinion I am glad that the TSA checkpoints are there to check and catch these criminals although this was not terrorist smuggling weaponry he was still a criminal.

Conclusion

While I may not be a fan of the body scanners, and not because of the invasiveness of them, but more of the ethical stature of the individuals running them, I am in agreement of them being used at every airport. These devices have kept thousands of guns off of airplanes, and thousands of criminals from boarding the airplanes. While there has not been a major terrorist action caught, using these procedures and technologies I am still a full advocate of their existence and endorse their usage. I can say this being a person who flies regularly and am not objective to the body scanners, simply because they are in place to do a job which I feel they do very well.

REFERENCES

How to Prepare [Online]. Retrieved April 4, 2012 from the World Wide Web: http://www.wikihow.com/Prepare-for-a-TSA-Body-Scan-or-Pat-Down

Tips [Online]. Retrieved April 4, 2012 from the World Wide Web: http://www.tsa.gov/travelers/airtravel/specialneeds/editorial_1567.shtm

U.S. v. Marquez [Online]. Retrieved April 4, 2012 from the World Wide Web: http://www.ca9.uscourts.gov/datastore/opinions/2005/06/07/0430243.pdf

Nude Body Scanners [Online]. Retrieved April 4 1, 2012 from the World Wide Web: http://www.wired.com/threatlevel/2011/03/scanners-part3/

What is TSA [Online]. Retrieved April 4, 2012 from the World Wide Web: http://www.tsa.gov/who_we_are/what_is_tsa.shtm

Prosthetics to Conceal Explosives [Online]. Retrieved April 4, 2012 from the World Wide Web: http://abcnews.go.com/Travel/tsa-responds-passenger-outrages-underwear-search-happen/story?id=12208932#.T5nnf6tYu1g

Circumventing the Fourth Amendment [Online]. Retrieved April 4, 2012 from the World Wide Web: http://boardingarea.com/blogs/flyingwithfish/2010/11/20/how-the-tsa-legally-circumvents-the-fourth-amendment/

TSA Travel Assistant [Online]. Retrieved April 4, 2012 from the World Wide Web: http://www.tsa.gov/travelers/airtravel/screening/index.shtm

Body Scanner, the Constitution, Ethics and X-Ray [Online]. Retrieved April 4, 2012 from the World Wide Web: http://teresa-knudsen.suite101.com/body-scanner-the-consitution-ethics-and-xray-a187816