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TSA - Are Their Processes of Searches legal and/or Ethical?

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Legal Ethics Regulations Bases of Management

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TSA - Are their Processes of Searches legal and/or ethical?

Who does not remember the devastating day of September 11, 2001 and the
aftermath thereof? Just to reiterate, on this day thousands of people were killed due to
terrorists crashing not one but two jetliners into the World Trade Center. After this day,
society demanded an increase of security features, and the government answered their
call by establishing the agency called Transportation Security Administration (TSA) in
2001. The TSA has introduced various controls to safeguard us, the travelers. However,
through the evolution of security screenings, from simple ID checks to Full Body
Scanners, the TSA is facing legal and ethical issues, which is addressed in the following
text.
Daily millions of travelers are subject to search when flying on any airline
anywhere in the United States, as well as internationally. The evolution of the security
features have discovered people who might have done harm, caught criminals who are
on the government’s watch list, but these features have also frustrated and infuriated
travelers. Their outcries are heard by Congressmen and women, who demand that Full
Body Scanning be discontinued and have even filed suits against the TSA, according to
the website of Democracy now and O’Brien (2008, 2010 respectively). To understand
the issues, which have caused so much controversy, we will look at what all the fuss is
about.
According to Emerson, state and federal government operates through agencies
which are legislatively created (2010). These federal agencies have powers which are
legislative, judicial, and executive, and thus have to conform with the constitutional law,
relevant general acts governing administrative procedure, requirements in the agency’s
own enabling act, and rules of the agency itself, citing Emerson (p. 37). The rules of the
agency itself are required to give announcement of a proposed rule, and give interested
parties the prospect to submit written or oral remarks (Emerson). An example of these
notices is TSA’s Notice to alter an existing Privacy Act system of records (75
FR 28042).
The funding for security features are regulated by the US Code Title 49
Transportation, Subtitle VII, Part C-Financing, Sec. 48301, Aviation Security Funding
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(49 USC Sec. 48901) (Library of Congress, 2010). This funding for the aviation security
is established through the right of Congress to tax and use the funds for any general
welfare purpose, which the TSA as an agency is a part of (Emerson, 2010). With this in
mind the taxes we pay, pays for the diligent work every TSA Officer, or also called TSO,
performs. Not only does the funding pay for the wages of the TSO’s but also for the
screening methods employed by the TSA, which are magnet wands, X-Ray machines
for luggage, and also the Advanced imaging technology (AIT), or in short the Full Body
Scanner. According to Barber, the TSA is planning to install 450 AIT units across the
United Sates by the end of 2010, with the cost of up to $170.000 per unit (2010).
President Obama allotted $1 billion for the aviation security project piloted by the TSA
(Barber, 2010).
The Full Body Scanner has been caught in controversy; some critics view this
machine as unethical, illegal, as in violating the Privacy Act, and the 4 th Amendment of
the U.S. Constitution, and others state that these scanners are vital to the security of air
travelers. As presented in the following paragraphs, the reader can conclude if these
screening processes are either illegal and/or unethical.
According to TSA Blog, TSO’s are required to perform a screening on each air
traveler, which is either by a pat-down or by AIT, the Full-Body Scanner (2008). The
pat-down, some call invasive, has taken place of the magnetic wands, due to the
“Underwear Bomber” (Umar Farouk Abdulmutallab) incident on December 28, 2009,
according to Esposito & Ross (2009). Umar Farouk Abdulmutallab wore briefs with a
six-inch long container filled with the high-explosive chemical PETN sown into them and
which could have easily overtaken and crashed the carrying plane (Esposito & Ross,
2009). This type of chemical is not detectable by a magnetic wand, but only by a pat-
down or better yet by the AIT. The pat-downs have increased their intensity, as from
using a wand close to your skin, to actually having bodily contact in the more private
areas of the body. However, in order to decrease the wait time and the bodily contact,
which could be a reason for more conflict between TSO’s and travelers, the AIT is
thought to be a better option. Nevertheless, there are legal and ethical issues arising
with the use of the Full Body Scanner.
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The main issue with the TSA to date is the utilization of the Full Body Scans at
airports. The first AIT machine was introduced in March 2010, and has since caused
legal and ethical issues [ CITATION Nic10 \l 1033 ]. The body scan has been boycotted and
even caused legal proceedings against the TSA, by the American Pilots Association,
Airline CEOs, the Libertarian Party, consumer rights groups, Electronic Privacy
Information Center (EPIC), and religious groups, due to violation of the Privacy Act and
the Fourth Amendment [CITATION Ben10 \l 1033 ]. The reasoning behind the possible
violations is the creation of nude pictures of all travelers who go through the AIT. The
AIT machine are human-operated and are designed to view concealed packets
containing liquid bombs, drugs, or knives, which are not detectable by a metal
detectors, but are now visible through the use of radiation and backscattering (which is
comparable with an x-ray) [ CITATION Kit09 \l 1033 ].
The TSA Blog has addressed a few of the myths surrounding the screening
procedures currently in place. TSA states that the pat-down will only be initialized if the
walk through the metal detector or AIT machine sounds the alarm, or if the traveler opts
out of either the metal detector or AIT machine. The pat-down is not used as a
‘punishment’, but assure security, and with that being said it is important to note that
pat-downs are only performed by an officer of the same gender as the traveler [ CITATION
Fra08 \l 1033 ]. The reasoning behind the intensified screenings, as the TSA explains is to
frustrate the planning of terrorists by incorporating mobile, unpredictable, intelligence-
driven security processes (Kerner, 2008). However, not only does this frustrate
terrorists, but what about travelers, who have no intentions of harming anyone?
Although, one might think seeing the long lines at the security checkpoints, people
would be frustrated. According to Kerner, less than 3% of passengers receive pat-
downs, which are also seen by the minimal complaints of more than 2 million people
flying in the United States daily. Conversely, with a civil penalty of $11,000.00, which
TSA is legally authorized to impose, if a traveler opts out of screening altogether, who
would contradict (Kerner, 2008 and Buono, 2010))? Thus, it is difficult to say if travelers
are truly not complaining or if they just choose to abide by the rules and endure ‘trotting
like cattle’ through the screening.
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Legally, the TSA has the right and duty to prohibit entry to the ‘sterile’ area, which
is considered the area after the screening. Under 49 C.F.R. §1540.105(a)(2), “a person
may not enter the sterile area ‘without complying with the systems, measures, or
procedures’ applied to control access to the restricted area in question” (Library of
Congress, 2010). In addition, 49 C.F.R. § 1540.107 and 1540.105(a)(2) gives the TSA
the authority to demand an identification as a condition to access the sterile area. Thus,
the legality of the screenings is covered under the Library of Congress. However,
another area which needs review is the fact of, is the screening violating the travelers 4 th
Amendment of the U.S. Constitution? The 4 th Amendment states
“a person has the rights to be secured in their persons, their houses, their
papers, and their other property, from all unreasonable searches and seizures,
shall not be violated by warrants issued without probable cause, supported by
oath or affirmation, or not particularly describing the places to be searched, or
the persons or things to be seized.” (U.S. Constitution)
However, the 4th Amendment continues to clarify that
“…the capacity to claim the protection of the Amendment depends not upon a
property right in the invaded place but upon whether the area was one in which
there was reasonable expectation of freedom from governmental intrusion.”
In air travel a person does not have reasonable expectation of freedom from
governmental intrusion, or is able to claim a violation of the 4 th Amendment, since the
courts have deemed as constitutionally permissible, under the administrative search or
special needs exception to the Fourth Amendment warrant requirement [ CITATION Fra08 \l
1033 ].1 With this in mind there is no ground to believe that the TSA and their screening
procedures are violating the 4th Amendment of the U.S. Constitution. In U.S. States v.
Hartwell, the courts found that the suspicionless checkpoint searches are permissible
under the Fourth Amendment, when a court finds a favorable balance between “the
gravity of the public concerns served by the seizure, the degree to which the seizure

1
Examples of rulings are found in United States v. Edwards, 498 F.2d 496 (2d Cir.
1974); United States v. Aukai, 497 F.3d 955 (9 th Cir 2007) (en banc); Gilmore v.
Gonzales, 435 F. 3d 1125 (9th Cir. 2006), cert. denied, 127 S. Ct. 929 (2007); United
States v. Hartwell, 436 F.3d 174 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006).
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advances the public interest, and the severity of the interference with individual liberty”
(quoting Brown v. Texas) [ CITATION Uni05 \l 1033 ]
The Privacy Act of 1974, a statute, regulates the gathering, usage, and release of
personal material collected by federal organizations (5 U.S.C. § 552a). The
Implementation of Exemption allows the TSA to exempt portions of its enforcement of
system of records from the access provisions of the Privacy Act in accordance with 5
U.S.C. § 552a(k)(1), (k)(2) and (j)(2) [ CITATION Fra08 \l 1033 ]. TSA claims these
exemptions for criminal investigation purposes, which TSA is a vital part of. TSA does
not only have the obligation to assure the safety of travelers but also to report to the law
enforcement if criminal activities or acts are witnessed [ CITATION Pri11 \l 1033 ]. By
disclosing their information and publishing many systems of records notice, which cover
the collection of information retrieved from its employees and also in public, the TSA did
abide by the regulation Act of 1974 [ CITATION Pri11 \l 1033 ].
In conclusion, the controversy surrounding the legality of search proceedings of
the TSA can be laid to rest, since the TSA has successfully shown that they have
abided by all the rules, regulations, and laws. Neither the Privacy Act of 1974, nor 4 th
Amendment, nor the Library of Congress has been violated by any of the proceedings
conducted by the TSA or their employees.
Left, now, is to prove if TSA’s screenings are ethical or not. The physicians of
EPIC raise concerns about the vulnerability of certain groups which could be negatively
impacted by the Body Scanner, which uses a small amount of radiation to create a
picture of the traveler in order to find weapons or contrabands, in short a nude picture.
These groups, who are supposed to be especially vulnerable, are [ CITATION Ben10 \l
1033 ]:
 Travelers over the age of 65
 Female population sensitive to radiation leading to breast cancer
 Immunocompromised individuals
 Children and adolescents
 Pregnant women and fetus
Not only is there a possibility of health risks, but there is also an ethical question as
to who is viewing these pictures, and how are these pictures used, if at all? The
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disturbing part of the entire process is that men, women, and children are subject to an
AIT machine examination [ CITATION Kit09 \l 1033 ]. Although a person can opt-out of this
procedure it is not widely known as we can see in the example below. The knowledge of
strangers viewing a traveler naked is very disturbing especially when we think of
children. Although the TSO’s (TSA Officers) assure that there is a same-gender officer
available for the pat-down procedures, does the TSA use the same process for the
viewing of the ‘nude’ pictures?
According to Byrd v. Maricopa County Sheriff’s Department, et al. “The desire to
shield one’s unclothed figure from view of strangers, and particularly strangers of the
opposite sex, is impelled by elementary self-respect and personal dignity” The case
cites another, York v. Story,, which states that “strip searches that involve the visual
exploration of body cavities are dehumanizing and humiliating” (2009). In addition the
case of Jordan v. Gardner, 986 F.2d 1521, 1524 (9 th Cir. 1993) (en banc), states that
the physical body searches of clothed female prisoners by male guards violated the
Fourth Amendment because there was little if any connection between the cross-gender
nature of the search and any legitimate government interest in security” [ CITATION
Byr09 \l 1033 ]. Thus if the procedures of screening is vital to our nations’ security when
traveling, and these are perfectly legal according to the cases addressed earlier, then
previous cases do show that it is at least very unethical to perform full body scans of
either sex or age. If prisoners are afforded the right of receiving searches by same-
gender correctional officers, travelers should receive the same treatment when TSO’s
view scans.
The TSA claims that the images taken by the AIT machines, which are taken and
reviewed within 20 seconds, are very secure and safe and the exposure to the radiation
could be equivalent to flying in an aircraft for two minutes in 30,000 feet [ CITATION Nic10 \l
1033 ]. However, there are concerns arising about the health effects of pregnant women
and the fetus. As was explained earlier, travelers are able to opt out of the AIT machine
and are able to receive a pat-down instead. Unfortunately, Moran explains that a
pregnant woman was ‘bullied’ through a Full Body Scan and was never given the choice
to utilize the secondary screening procedure, the pat-down (2010). The pregnant
woman was tantalized by TSO’s who claimed that the AIT machine is as harmless as an
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ultrasound and that she should just walk through the scanner. In fear for her fetus, the
pregnant woman was in tears but did cave in and submitted herself and her fetus to the
‘minimal’ radiation of the full body scanner. Not once did the officers offer her a choice
to utilize alternative screening (Moran, 2010). Is this considered to be unethical? Would
TSA be liable for their TSO’s and their product, if the fetus or the mother were to have
medical complications?
According to Jennings, the TSA officers and the TSA are in a master-servant
relationship, which is defined as the master (employer), exercising an abundant control
over the servant (employee) (2009). During the scope of employment, this is defined as
the time, in which the employees perform work for the benefit of the employer or
company (Jennings, 2010). Thus in the situation with the TSO’s and the pregnant
woman, clearly the TSA could be held liable for their officers and their product. Not only
is the legal grounds cleared, but the ethical question here is also answered. Although
the TSA officers had another possibility to assure that the pregnant woman is no threat
to the other travelers, instead of utilizing the AIT machine, they did not offer her a pat-
down. Of course the length of performing a pat-down cannot compete with the 20
seconds it would take to put the mother and the fetus through a machine.
According to Persons, there has been reported violence in September 2010, at the
Miami International Airport, due to the use of full body scanners, and the felt humiliation
of travelers (2010).
Thus are the TSA’s screening procedures legal? Viewing the legal findings, cases,
the court’s decisions, and the U.S. Constitution, there is a great deal of emphasis on
yes, these procedures are indeed legal. However, the conclusion on the subject if the
TSA’s screening procedures are ethical would have to be found within oneself. For
some the procedures might not be unethical, but to some it might be. As long as the
TSA is not attempting to bypass the law or attempts to profit from these procedures,
TSA is in the clear. Nevertheless, it is up to the individual travelers, if they would like to
utilize the Full Body Scanner (AIT) or the pat-down, or if they would rather opt out of
traveling. The TSA is in charge of our nations’ aviation security, thus they are attempting
to assure just that. Thus as frustrating as it might be to stand in line and wait until it is
the travelers’ turn to be screened, traveling by air is still less frustrating than sitting in
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traffic for hours or driving for days to the other side of our country. In the end, the
traveler does not have to use the luxury of traveling by plane.
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References
Barber, N. (2010, March 05). TSA Installs Full-body Scanners to Screen Air Travelers.
Retrieved January 31, 2011, from PC World:
http://www.pcworld.com/article/190939/tsa_installs_fullbody_scanners_to_screen
_air_travelers.html
Beahm, J. (2010, November 12). Do Airport Body Scanners Pose Health Risks?
Retrieved February 01, 2011, from Findlaw:
http://blogs.findlaw.com/injured/2010/11/do-airport-body-scanners-pose-health-
risks.html
Buono, A. (2010, November 22). Think Twice before Opting out of TSA Body Scan.
Retrieved January 24, 2011, from Lawyers.com: www.lawyers.com/our-
blog/archives/
Byrd v Maricopa County Sheriff's Department, Et AL, 07-16640 (United States Court of
Appeals For The Ninth Circuit July 24, 2009).
Eaton, K. (2009, December 30). Full-Body Scanners at Airports: The Good, the Bad,
and the Ugly. Retrieved January 11, 2011, from FastCompany:
http://www.fastcompany.com/blog/kit-eaton/technomix/full-body-scanners-
airports-good-bad-and-ugly
Emerson, R., J.D. (2009). Discharge, Damages, and other Remedies (5th ed). New
York: Barron's Educational Services, Inc.
Jennings, M. (2009). It's Legal, Ethical, and Judicial Environment (8th ed). Ohio: South
Western Cengage Learning.
Kerner, F. (2008, 11 8). Furthering the Dialogue on IDs. Retrieved January 31, 2011,
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lawyers.html
Moran, C. (2010, September 9). Pregnant Traveler: TSA Screeners Bullied Me Into Full-
Body Scan. Retrieved January 31, 2011, from The Consumerist:
http://consumerist.com/2010/09/pregnant-traveler-tsa-screeners-bullied-me-into-
full-body-scan.html
National Outcry over TSA Body Scanners and Invasive Pat-Downs. (2010, November
19). Retrieved February 12, 2011, from Democracy Now:
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http://www.democracynow.org/2010/11/19/national_outcry_over_tsa_body_scan
ners
O'Brien, J. (2010, November 04). UCSF Scientists Speak Out Against Airport Full-Body
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