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7
Legal Issues

The Airport Security Safety Act directs the FAA to develop and implement better airport security technology. However, legal issues and challenges could arise from approval by the FAA of the use of new and more invasive passenger screening technologies under consideration. In this chapter, the panel specifically reviews the challenges that have been raised against screening technologies currently used in airports or against the introduction of similar screening and searching technologies and procedures in other contexts. The discussion focuses on the nature of these challenges, the identity of the challengers, and the judicial responses. For purposes of the review, the panel assumes that the screening devices and the personnel operating them both function effectively.

The panel identified two principal types of legal challenges in the area of passenger screening: (1) the violation of the rights of an individual, as guaranteed under the Fourth Amendment to the U.S. Constitution, and (2) injury (real or perceived) to the person or to legal interests resulting from the passenger screening process. The first type is generally referred to as an unconstitutional search. Tort1 claims of privacy or personal injury constitute the second type of legal challenge. Each of these issues is addressed below.

In general, under the U.S. Constitution and federal and state laws, courts have upheld the right of the FAA to institute airline passenger screening procedures, even when those procedures reveal more than just the presence or absence of dangerous materials or threat objects. However, the legal problems associated with the implementation of procedures that are more intrusive than the current ones must be addressed. According to the President's Commission on Aviation Security and Terrorism, ''the more security measures are imposed, the more fundamental freedoms are restricted" (PCAST, 1990). Even as this report was being written, stricter and more invasive security measures were being imposed as a result of a higher threat level (Phillips, 1995).

The material in this chapter briefly outlines and indicates the types of legal issues that have been raised. Particular legal arguments will vary according to the jurisdiction and to the factual scenario. Details of particular arguments and cases are summarized in appendix C.

UNCONSTITUTIONAL SEARCH

The Fourth Amendment to the U.S. Constitution is the most obvious context in which the legality of airport security searches is determined. Like airport security searches, the role of the Fourth Amendment is to balance privacy and law enforcement. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures" by stipulating that any search conducted must be made on reasonable grounds. In addition to the reasonableness of the grounds, the courts commonly weigh three aspects of a search to determine whether the search is reasonable: the degree of intrusiveness of the search procedure; the magnitude and frequency of the threat; and the sufficiency of alternatives to conducting a search. Courts also consider the effectiveness of the search in reducing the threat and whether sufficient care has been taken to limit the scope of the search as much as possible, while still maintaining this effectiveness.

The analysis of a Fourth Amendment challenge involves two threshold issues: (1) whether there is a search or seizure, and (2) whether the search or seizure is done by the government. (These two concepts are discussed in more detail in appendix C.) If no search or seizure occurred, or if it was done by a private entity,2then it is not necessary to determine whether it was reasonable under the Fourth amendment. In such cases, the requirements of the amendment simply do not apply (see Dow Chemical Co., 1986; Lebron, 1995).3

Once it has been determined that a search has been done by the government, the Fourth Amendment requires that the search must either have been supported by a warrant or that

1 A tort is a wrongful act for which a civil monetary award may be assessed.

2 Some circuits hold that "the government's involvement in promulgating the FAA guideline to combat hijacking is so pervasive as to bring any search conducted pursuant to that program within the reach of the Fourth Amendment" (United States v. Ross, [9th Cir. 1994]). Other circuits hold that airline searches constitute private conduct (United States v. Morgan, [6th Cir. 1985]). No universal agreement has been reached as to whether airport searches are performed by the government or by private entities.

3 A brief description of many cases cited is contained in appendix C.



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Page 34 7 Legal Issues The Airport Security Safety Act directs the FAA to develop and implement better airport security technology. However, legal issues and challenges could arise from approval by the FAA of the use of new and more invasive passenger screening technologies under consideration. In this chapter, the panel specifically reviews the challenges that have been raised against screening technologies currently used in airports or against the introduction of similar screening and searching technologies and procedures in other contexts. The discussion focuses on the nature of these challenges, the identity of the challengers, and the judicial responses. For purposes of the review, the panel assumes that the screening devices and the personnel operating them both function effectively. The panel identified two principal types of legal challenges in the area of passenger screening: (1) the violation of the rights of an individual, as guaranteed under the Fourth Amendment to the U.S. Constitution, and (2) injury (real or perceived) to the person or to legal interests resulting from the passenger screening process. The first type is generally referred to as an unconstitutional search. Tort1 claims of privacy or personal injury constitute the second type of legal challenge. Each of these issues is addressed below. In general, under the U.S. Constitution and federal and state laws, courts have upheld the right of the FAA to institute airline passenger screening procedures, even when those procedures reveal more than just the presence or absence of dangerous materials or threat objects. However, the legal problems associated with the implementation of procedures that are more intrusive than the current ones must be addressed. According to the President's Commission on Aviation Security and Terrorism, ''the more security measures are imposed, the more fundamental freedoms are restricted" (PCAST, 1990). Even as this report was being written, stricter and more invasive security measures were being imposed as a result of a higher threat level (Phillips, 1995). The material in this chapter briefly outlines and indicates the types of legal issues that have been raised. Particular legal arguments will vary according to the jurisdiction and to the factual scenario. Details of particular arguments and cases are summarized in appendix C. UNCONSTITUTIONAL SEARCH The Fourth Amendment to the U.S. Constitution is the most obvious context in which the legality of airport security searches is determined. Like airport security searches, the role of the Fourth Amendment is to balance privacy and law enforcement. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures" by stipulating that any search conducted must be made on reasonable grounds. In addition to the reasonableness of the grounds, the courts commonly weigh three aspects of a search to determine whether the search is reasonable: the degree of intrusiveness of the search procedure; the magnitude and frequency of the threat; and the sufficiency of alternatives to conducting a search. Courts also consider the effectiveness of the search in reducing the threat and whether sufficient care has been taken to limit the scope of the search as much as possible, while still maintaining this effectiveness. The analysis of a Fourth Amendment challenge involves two threshold issues: (1) whether there is a search or seizure, and (2) whether the search or seizure is done by the government. (These two concepts are discussed in more detail in appendix C.) If no search or seizure occurred, or if it was done by a private entity,2then it is not necessary to determine whether it was reasonable under the Fourth amendment. In such cases, the requirements of the amendment simply do not apply (see Dow Chemical Co., 1986; Lebron, 1995).3 Once it has been determined that a search has been done by the government, the Fourth Amendment requires that the search must either have been supported by a warrant or that 1 A tort is a wrongful act for which a civil monetary award may be assessed. 2 Some circuits hold that "the government's involvement in promulgating the FAA guideline to combat hijacking is so pervasive as to bring any search conducted pursuant to that program within the reach of the Fourth Amendment" (United States v. Ross, [9th Cir. 1994]). Other circuits hold that airline searches constitute private conduct (United States v. Morgan, [6th Cir. 1985]). No universal agreement has been reached as to whether airport searches are performed by the government or by private entities. 3 A brief description of many cases cited is contained in appendix C.

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Page 35 it must fit into a few "specifically and well-delineated exceptions" (Katz, 1967). Of course, in the airport security context, "time limitations effectively preclude security personnel from obtaining a warrant for searching" (McGinely and Downs, 1972). Therefore, airport security searches, if they are determined to be searches in the context of the Fourth Amendment, must fit into one of three established exceptions applicable to the airport security context: the administrative search exception, the stop-and-frisk exception, and the consent exception. Other exceptions, such as exigent circumstances or a search incident to a lawful arrest based on probable cause, have been found to be applicable in the airport security context, but these will not be discussed in this report since, by their very nature, they are random and unpredictable occurrences. Virtually all Fourth Amendment challenges to airport security screening devices and procedures have been claims made by criminal defendants seeking to exclude the evidence so obtained from criminal trials or to overturn convictions. These people were found to have had illegal items, such as drugs, on their persons or in their carry-on baggage during a security search. To prevent the use of the discovered evidence and to thwart a criminal prosecution against them, these defendants sought to suppress the evidence by alleging a violation of the Fourth Amendment; that is, that the evidence was obtained as a result of an illegal search. Occasionally, a person who has not allegedly committed a crime, at least not in the current lawsuit, brings a civil claim for a monetary award based on Fourth Amendment protection or makes a criminal complaint against officers or agencies responsible for breaching their protection. A person or group may also sue to stop an allegedly violative process in advance (Klarfeld, 1992; Hartke, 1973; Wagner, 1985; Bivens, 1971). Administrative Search Exception Airport security searches fit quite naturally into the administrative search exception to the Fourth Amendment. Administrative searches are justified on the basis that they serve a societal purpose other than standard criminal law enforcement (Vernonia School District 47J, 1995, citing Griffin, 1987). After all, the Fourth Amendment cannot be construed to prevent the government from fulfilling a variety of other necessary functions, such as maintaining school discipline, preventing drunk driving, detecting illegal aliens, or even ensuring air traffic safety (Vernonia, 1995; Michigan Dept. State Police, 1990; United States v. Martinez-Fuerte, 1976). The first issue that must be faced in determining whether a search scheme falls into the administrative search exception balances the privacy interests sacrificed against the societal purpose or the need for which the search scheme was undertaken. If the balance is struck on the side of the government, it must still be determined whether the special need could have been met in a less intrusive manner. Finally, it must be determined whether the particular search was really made pursuant to the special need. Balancing Approach In determining whether a need justifies a general regulatory scheme of searching, the court balances the nature of the privacy interest on which the search intrudes against the nature of the government interest (Vernonia, 1995 at 2390, citing Skinner, 1989). In the case of airport passenger screening, the nature of the government interest will change according to the perceived threat level. That is, government interest in ensuring air safety is stronger during times of danger, such as when a credible threat of attack exists against a specific airport (as there was against the three New York City area airports during the writing of this report) or when the United States is involved in international conflicts (such as during the Persian Gulf War). Even in times of relative peace, the societal interest in preventing air piracy has commonly been balanced favorably against the invasion of a search, thereby allowing the use of general passenger screening procedures (United States v. Pulido-Baquerizo, 1986; United States v. Epperson, 1972; Camara, 1967; United States v. Davis, 1973). Part of the justification for the administrative search exception to the requirement for a search warrant is the regulatory scheme for airport security searches, which requires that all persons be searched, regardless of suspiciousness of any particular individual (14 C.F.R. §107.20 [1995]). The issue considered in this report is whether that search, if performed using new technologies that are more intrusive than current technologies, will tip this balance. "Is the interest important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a person's expectation of privacy?" (Vernonia, 1995 at 2394). To answer this question, we must look at the other factors in the balancing approach. Against the special need of the government, the court must consider the passenger's expectation of privacy. This consideration involves the same analysis used in the threshold issue of whether a search has occurred, with one important difference. Deciding whether a person has a reasonable expectation of privacy for purposes of determining whether or not a search has taken place is a yes-or-no-question. Either one does or does not have a legitimate expectation of privacy in this context. On the other hand, expectation of privacy as a factor in the balancing test becomes a matter of degree. Thus, the court in Vernonia (1995) held that schoolchildren, because of the supervisory role schools have over them, have a decreased expectation of privacy at school. As discussed in the first section, airline passengers most probably have a legitimate

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Page 36 expectation of privacy against being searched in an intrusive manner. Nevertheless, this expectation could decrease if passengers perceive the threat level to be high. Another factor balanced against the special needs of the government is the nature of the privacy intrusion. Although there is a good reason for it, "the intrusion is not insubstantial. It is inconvenient and annoying, in some cases it may be embarrassing, and at times can be incriminating" (United States v. Skipwith, 1973). The Supreme Court is particularly sensitive to the invasiveness of the search. In supporting the drug testing of high school athletes in Vernonia (1995), Justice Scalia recited with some detail just how the urine samples are collected: "The student enters an empty locker room accompanied by an adult of the same sex. Each boy produces a sample of urine [while] remaining fully clothed with his back to the monitor who stands approximately 12-15 feet behind the student...no less privacy than in public restrooms" (Vernonia, 1995 at 2388). For a more intrusive search, the court has not overturned Circuit Court opinions upholding strip searches in public schools (Cornfield, 1993; Williams, 1991). In these cases, the findings of the courts that the nature of the intrusion did not upset the balance in school searches is in the government's favor, but this interpretation is not universal (State v. Mark Anthony D., 1993). Similarly, the extra intrusiveness of body cavity searches of prisoners did not upset the balance struck on the side of the government for prisoner searches (Covino, 1992). Will the extra intrusiveness of some technologies for airport security searches tip the balance in favor of privacy interests? Careful measures were taken in the situation cited in Vernonia (1995) to protect the privacy and dignity of the students and still meet the special needs of the government; that is, to detect and prevent drug usage among student athletes. And, in the school strip search cases, the searches were conducted only on particular suspicion of particular individuals. Unlike the drug testing upheld in Vernonia (1995) the school strip searches were not part of a regulatory scheme applied to an entire class of persons. Prisoners can be strip searched because the special need to do so is strong and the expectation of privacy is very low (Covino, 1992 at 77); airline passengers have a much higher expectation of privacy than prisoners. Given the conclusions of Vernonia (1995), it would seem that few general regulatory schemes could justify such invasive searches. To justify a passenger screening technology that produces an image of passengers' bodies beneath their clothes, the screening procedures must be such that the privacy of the individual is protected to the extent possible. However, the special need of the government to ensure air travel security is certainly as strong as the need for prison security, especially at times of high threat levels. In addition, the nature of the intrusion on the privacy of airline passengers is not as invasive as the body cavity searches of prisoners. More privacy is assured in being clothed and being scanned by a machine and a possibly unseen operator than in being prodded by live guards. It seems as though the balance might strike on the side of air travel security. Nevertheless, these imaging technologies might not be acceptable if the government need for ensuring air travel security can be met through less intrusive means. Thus, measures should be taken to minimize the appearance of nakedness, the number of people having access to and identifying the image with the traveler, the time the image endures or is preserved, the uses to be made of the data, etc., to the extent consistent with safety objectives. The next section deals with the concept of less versus more intrusive means. Less Intrusive Alternatives Although the interest in safety may outweigh the invasion against privacy, that invasion must still be minimized to the extent feasible because the invasion is justified only to the extent necessary to achieve the government goal of air travel safety. Therefore, it is important to ensure that the searches are made pursuant, and substantially related, to that purpose (Vernonia, 1995 at 2395). The courts generally have upheld that a security search must be as "limited...as is consistent with the administrative need that justifies [it]" (United States v. $124,570 U.S. Currency, 1989), but practicality does not need to be sacrificed (Vernonia, 1995 at 2388). This concept is important for airport searches because the only alternatives to many technologies for detecting weapons and explosives are visual and tactile body searches (United States v. Doe, 1993; State v. Perez, 1987), which are obviously more invasive. Still, even intrusive searches can be conducted in a minimally intrusive manner. For example, if images of the bodies of passengers must be produced, images should be displayed no longer than necessary to ascertain the security risk. There should also be a guarantee that the image data will neither be preserved nor archived. An example of a minimally intrusive passenger screening technique that would not be considered an invasion of privacy is scanning passengers boarding cards for traces of explosive material. Passengers receive boarding cards prior to boarding the flight, when they hand a part of the card back to an air carrier. This technique is unlikely to reveal anything about the passenger other than information about their previous handling of explosive materials.4 4 Many legitimate reasons can be given to explain why a person would have traces of explosive or dangerous materials on their hands, including employment at an explosives manufacturing plant or in some ski areas. Thus, this search technique would not just reveal illegal activity.

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Page 37 Potential for Abuse Even if more intrusive airport security-screening procedures can be justified under the administrative search exception, it still must be determined whether a particular search was so conducted pursuant to this objective. As discussed above, air travel safety is, without question, a weighty administrative objective. Yet, questions may arise about whether a particular search was appropriately conducted toward this objective. No matter how narrowly a device or procedure is tailored to detecting safety-related concerns, other information will still be obtained in the process. The procedure may yet be acceptable if the additional information is learned inadvertently. When that information is sought specifically, however, and no concurrent safety rationale is given, then the search no longer falls under the exception. The search thus constitutes an actionable violation of constitutional rights (see discussion of United States v. $124,570 U.S. Currency [1989)] in appendix C). For example, security screeners may ask passengers to open carry-on bags, if the x-ray image shows a suspicious shape that may be an item dangerous to the airplane. However, it is not acceptable for screeners to inspect bags solely on the suspicion that they contain drugs or large amounts of cash. United States v. $124,570 U.S. Currency (1989) establishes a presumption that information unrelated to safety is sought when rewards are to be gained. On the other hand, the discovery of drugs by a security officer need not be totally inadvertent (Horton, 1990). The fine point of this argument is whether information on a nonthreat object is obtained in the course of the strict search for threat objects or whether action has been taken, in the course of the search, to broaden the scope to include a search for nonthreat but illegal or suspicious objects. Current airport passenger screening techniques are open to challenges that a particular screener acted outside of the limited right to search for threat objects. Technologies that permit the identification only of items that are a threat to the safety of the airport and the aircraft would remove this subtle element of doubt in the airport screening process. These technologies would also likely be welcomed by air carriers because it means less time spent on handling claims against faulty screening procedures. Technologies that give the operator more specific information about an alarm, such as the location of a metallic object on a person's body, also would work to minimize the amount of extraneous information obtained during a search. One way to tailor the search procedure used to a specific need is to screen specially indicated passengers. For example, invasive searches could be made only of persons who repeatedly set off metal-detector alarms. Security personnel may conduct even an intimate search of such persons until the suspicion is dispelled (United States v. Roman-Marcon, 1993; State v. Baez, 1988). As mentioned before, this invasiveness must be reduced to the extent possible. Stop-and-Frisk Exception A stop-and-frisk exception to the Fourth Amendment requirement for a search warrant occurs when an officer or another authority has a reasonable suspicion that another person is a threat. In the context of airport passenger screening, the reasonable suspicion might be that the subject fits the profile of a typical hijacker, or that the screener observed a bulge under the subject's jacket, which raised the suspicion that the person could be carrying a concealed weapon. Because suspicion focuses rather particularly on that individual, this may fall under the general principle of stop-and-frisk law and be called an individual stop and frisk search. In addition, it would seem that the law would allow a stop-and-frisk search if an individual fits a narrow class of suspicious persons. This we may call a selectee class search. Thus, anyone triggering the alarm on the metal detector would be under a reasonable suspicion and may be searched further under this exception to the Fourth Amendment. In actual application, the two kinds of stop-and-frisk searches tend to blend, and it is questionable whether even in theory they are separate. Both are based on the Terry case, discussed below. Individual Stop-and-Frisk Search In 1969, almost one Eastern Airlines flight per week was diverted by hijackers (Fenello, 1973). In response, Eastern instituted a deterrent system consisting of a metal detector and a behavioral profile. The use of this system was upheld under the standard in Terry v. Ohio (1968) and in United States v. Lopez-Pages (1971). In Terry (1968) the Supreme Court ruled that a policeman, based on his own instincts and suspicions and on the need to protect himself and others, may conduct a limited search for weapons without a warrant or probable cause to believe there was a crime (Terry, 1968 at 6). Although not the level of individualized suspicion required under the rubric probable cause, there still had to be some reasonable grounds, and the search was limited to a frisk-type weapons pat-down. Lopez (1971) upheld Eastern's use of its system because of its selectivity in searching only those who fit the profile and those who had triggered the metal-detector alarm (Lopez, 1971 at 1080). Just as the officer in Terry (1968) had a particularized and objective basis for suspecting that a crime was being committed, so did the security officials of Eastern Airlines. Thus, Eastern could perform a search of a limited scope and duration for safety reasons. However, a potential for abuse exists in accepting a warrantless search in the application of the profile to an individual. To prevent abuse, the attributes in the profile must be relevant to the threat being averted.

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Page 38 Soon after pioneering efforts of Eastern, the mass-search technique became the order of the day. No longer was there a need to demonstrate a prior basis for suspicion and, thus, there was no need to use the stop-and frisk search, (Emergency Order of FAA, U.S. Dept. Transp. Press Release No. 103-72 [Dec. 5, 1972]; 14 C.F.R. §121.538 [1973]). The general climate of danger following the repeated hijackings of U.S. air carrier flights was determined to be reason enough for searching all airline passengers (United States v. Epperson, 1972). Because of its universal application to all passengers, the airport security check was naturally justified as an administrative search, and the general stop-and-frisk search exception to the Fourth Amendment for airport passenger screening was no longer needed. Selectee Class Stop-and-Frisk Search In contrast to the individualized stop-and-frisk search, the selectee class category of the stop-and-frisk search approach requires the identification of a small group of people singled out for additional scrutiny. In current airport security-screening procedures, passengers who set off the metal-detector alarm are automatically identified for scrutiny. As in the individualized stop-and-frisk search, the criteria used to identify these passengers must be relevant to the threat being averted. Security personnel need only a minimal level of objective justification—something more than an inchoate and unparticularized suspicion or hunch—to conduct a selectee-type stop-and-frisk search (United States v. Sokolow, 1989 at 7 [quoting Terry, 1968]). The suspicion only needs to establish probability, not certainty, and it can be established from the totality of circumstances (United States v. Sokolow, 1989 [citing United States v. Cortez, 1981]). Thus, the requisite suspicion can be established not only by the passenger fitting the hijacker profile, but also by the passenger repeatedly triggering the metal-detector alarm (LaFave, § 10.6[f]; United States v. Lopez-Pages, 1985). If air carriers were able to identify potential hijackers or terrorists with some degree of accuracy, then the administrative search justification for universal screening would come into question, and airport security-screening procedures could be altered substantially. After all, there would be no need to search every passenger, if searching only a few would be enough to meet the safety goals (LaFave, at §10.6[c]). If selectivity is lacking, the stop-and-frisk justification would come into question. Because the Terry (1968) stop-and-frisk search is directed at persons—as opposed to the administrative search, which is directed at places—it cannot be used as a sufficient basis for searching someone simply because he or she is at the airport preparing to board a plane. This selectivity would not sufficiently distinguish between innocent passengers and individuals likely to cause security problems. For both legal and practical reasons, under the stop-and frisk justification the selection criteria used to identify those who could be subjected to additional screening must be such that very large percentages of the population are not identified for further investigation. Under the Lopez approach, only 0.28 percent of all passengers were selected, and half of them were not even stopped because they did not trigger the alarm on the metal detector. Only 6 percent of the 0.28 percent were found to be carrying weapons. These numbers are equivalent to stopping approximately 700 people at the Dallas-Fort Worth International Airport each year to identify 40 to 50 people carrying weapons. This rate of additional screening was deemed sufficient in the Lopez case in 1985 (LaFave, at § 10.6[b]), and, if the selectivity criteria were highly accurate, it probably would still be sufficient today (United States v. Sokolow, 1989). Some cases are more clear-cut than others. In United States v. Dalpiaz (1974), a passenger going through a security checkpoint was found to be carrying a pistol, a hunting knife, six bullets taped together, a walkie-talkie, a gun holster, an alarm clock, and a woman's cigarette case with a number of wires. Upon further inspection, a nonmetallic projectile-simulator explosive device was also found in his coat. Dalpiaz argued that the final search was unjustified because he had already passed the metal detector after setting the other items aside. The court rejected this argument, finding that the police had a sufficient objective basis for believing that Dalpiaz posed a safety risk to themselves and to the public. Underlying both the administrative and the stop-and-frisk exceptions is a balancing approach. The government interest must be greater than the individual privacy lost. Because administrative searches are general regulatory schemes, the balancing is done on an aggregate level. Searching all passengers is worth it. On the other hand, the balancing for stop-and frisk searches is done on an individual level where a particular objective basis is required for searching individuals. The balance in a stop-and-frisk case will favor privacy, unless the probability is high that the person was stopped because her or she posed a safety problem. Nevertheless, the added flexibility of the stop-and-frisk approach allows the air carrier to increase the invasiveness of the search as suspicion of an individual increases. Consent Exception The Fourth Amendment protects the privacy interests of people. When passengers freely and voluntarily give their consent to a security search, they surrender those interests, and there would be no question of a violation of their Fourth Amendment rights (Schneckloth v. Bustamonte, 1973). By consenting to the search, individuals surrender their legitimate expectation of privacy and make the search reasonable.

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Page 39 Explicit voluntary consent will forestall any Fourth Amendment issue. However, if "the nature of the established screening process is such that the attendant circumstances will establish nothing more than acquiescence to apparent lawful authority," some authorities have ruled that there is not real consent, (LaFave, at §10.6[g], citing United States v. Ruiz- Estrella, 1973). It can hardly be considered voluntary consent, some authorities argue, when a passenger's alternative to submission is forgoing his or her flight (United States v. Albarado, 1974). Signs announcing air carrier search policies are posted at all security checkpoints (14 C.F.R. §108.17[e], 1995). When passengers proceed to the gate, have they implicitly consented to a search? Perhaps. (United States v. Davis, 1973 at 912; contra LaFave, at § 10.6[g]). But a passenger wishing to board an airplane has no choice but to agree to the search. In 1991 the Supreme Court ruled that having a confined range of choices does not necessarily render consent involuntary when the individual is responsible for confining those choices (Florida v. Bostick, 1991). In other words, when individuals place themselves in a situation where they are likely to be searched, they could be deemed to have consented to the search. Airline passengers would not feel free to decline a request to submit to a search because declining the search means declining the right to fly. Yet passengers approach the security officers and place themselves in a situation in which they know they will be searched (Cf. Vernonia, 1987 at 2392). Although passengers may not feel free to decline the search request when they show up at the gate, they are not coerced by the government to fly in the first place. It could be argued that the airport security officers are simply part of the background into which passengers voluntarily inject themselves. And yet making the price of refusal to be searched very high (forgo the flight) is tantamount to coercion. But Florida v. Bostick (1991) may mean that aviation security personnel "are free to rely on coercive tactics to obtain consent [e.g., by preventing boarding] to search as long as the citizen himself contributed in some way, even innocently, to the coerciveness of the encounter [by deciding to fly]" (Heureman, 1994). However, it is too early to tell what all this conflict of arguments and authority may mean. Nevertheless, there is at least an argument of consent here. Two questions regarding the consent exception remain unanswered: (1) the point at which passengers give consent, and (2) to what, precisely, passengers are consenting. (We assume from here on that there is some kind of voluntary consent implicit in the airport circumstance and examine the authority that so holds to answer these two questions.) The first question is relatively easy to answer. Passengers are deemed to have given consent when they place their bags on the conveyer belt for luggage screening (United States v. Pulido-Baquerizo, 1986; People v. Heimel, 1991). After this point, passengers are no longer free to leave. Thus, if passengers set off the alarm on the metal detector, they must also submit to a limited manual search to determine the cause of the alarm (People v. Heimel, 1991; but see United States v. Vigil, cert. denied, 1993). If passengers were allowed to withdraw after setting off the security system, then the deterrent effect of the security system would be undermined. "There is no guarantee that...[they] might not return and be more successful. Of greater importance, the very fact that a safe exit is available...would, by diminishing the risk, encourage attempts" (United States v. Skipwith, 1973 [Aldrich, J., dissenting]). The second question is more difficult to answer. Implicit consent derives much of its justification from the fact that it is a "privacy invasion [that] free society is willing to tolerate as long as the scope of the search is limited to discover[ing] weapons or explosives...and is limited in a manner which produces negligible social stigma" (United States v. Pulido-Baquerizo, 1986 at 901). As the search becomes more intrusive, it becomes more difficult to suppose that one would have consented to it (United States v. Blake, 1989), but we are not talking real consent here. The scope of consent is only what the reasonable person would expect (Florida v. Jimeno, 1991), but again, we are talking policy rather than consent. And, as discussed in the section on the expectation of privacy, what persons expect can be shaped by either edict or systematic practice. Other Exceptions to Fourth Amendment Requirements In addition to the exceptions cited above for conducting a search without a warrant, officials may conduct warrantless searches under a few other circumstances. For example, at a national border, a U.S. Customs official is allowed to "stop, search, and examine any person upon whom an officer suspects there is contraband" (19 U.S.C. §482, 1994; United States v. Ramsey, 1977). Another such scenario involves exigent circumstances or an emergency. Searches under exigent circumstances are conducted to prevent physical harm to officers or other persons (United States v. Sarkissian, 1988; Ayres, 1994). Thus, when the government need is greater or more urgent, a search can be justified, and the invasiveness of a search can be increased. We have also put to one side the exception allowing a search pursuant to a lawful arrest, as stated above. TORT CLAIMS The employment of new airport security technologies, especially those that produce images of passengers' bodies beneath their clothes, might provoke two types of tort claim: claims for personal injuries caused by the operation of the device, and claims for violations of personal privacy. Because torts are governed by state law, the variety of claims in particular factual scenarios and in particular jurisdictions may vary widely. Therefore, a few general issues are discussed

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Page 40 below. Anyone facing a specific claim, of course, must get professional legal help addressed specifically to the particular facts, which may make an enormous difference. A threshold issue in both types of tort claim is whether the FAA has immunity under the Federal Tort Claims Act (28 U.S.C. §2680) and whether this immunity extends to the air carrier or the security company operating the screening equipment or to the manufacturer of the equipment. The FAA is probably immune from any tort suit, if it is acting within its discretionary function (28 U.S.C. §2680[a]). What is discretionary is subject to a long line of cases, but negligence on an operational level or in carrying out something in a particular case is probably not a discretionary function. Most of what is considered here, however, probably would be a discretionary function, i.e., adopting certain policies and guidelines. But even then, it is not possible to be definitive. Air carriers and manufacturers have also been found to be not liable in certain instances (but not all) where the immunity conferred on the Federal Aviation Administration may be extended to private actors acting pursuant to government directives (28 U.S.C. §1671; Carley v. Wheeled Coach, 1993). For reasons unrelated to immunity, security companies on some occasions (but not all) have been found not to be liable for damages caused by the security-screening process because security companies have no control over the configuration of the device; the companies merely operate it for the air carrier, without the authority to change anything on or about the device (Klopp v. Wackenhut Corporation, 1992). The above discussion of situations of non-liability refers only to the policy of airport security screening. Under other circumstances, manufacturers or operators may be found liable for injury due to the operation, maintenance, inspection, etc., of the security equipment. If an air carrier properly deploys and operates a metal detector that satisfies the requirements set forth by the FAA for such devices, then the air carrier is probably not liable for damage or invasion resulting from a potential claimant's passage through it if the equipment is working properly. Liability for a person carrying a threat object the metal detector was not designed to detect is probably similar, unless the claimant makes an argument that some other measures should have been taken. However, if the air carrier operated the equipment in a manner that allowed the passage of a person carrying a threat object that the metal detector was designed to detect, then the air carrier could be held liable for damages resulting from its failure to prevent that person from entering the sterile or safe area of the airport. Product Liability Manufacturers and operators of a wide variety of products have been found liable for injuries or perceived injuries resulting from the use of their products. The panel does not expect liability issues to be any different for manufacturers and operators of airport security-screening equipment. At the very least these companies will be required to maintain the standards maintained by other producers in the United States. One issue that anyone suing the manufacturer or operator of security-screening equipment will have to prove is that the injury resulted from the use of the equipment. This may be difficult to do in the case of airport security-screening equipment because the exposure to, or contact with, the equipment is usually limited to a short time in a well-supervised area. However, manufacturers and operators of security-screening equipment must be aware of potential injuries resulting from their use. An example of a technology that individuals may perceive as harmful is x-ray backscatter imaging, which exposes passengers to less than 0.003 millirem of radiation per scan (IRT Corp., n.d.). This radiation dose is 100 times less than the amount of radiation absorbed from being in Miami for one day or from watching television for one hour; it is over 300 times less than the amount absorbed during a two-hour flight (IRT Corp., n.d.). Therefore, tracing the cause of any injury to the airport security scan is difficult, as has been proven in previous cases involving common sources of radiation (San Diego Gas & Electric Co. v. Superior Court, 1995; Reynard v. NEC Corporation, 1995). Moreover, even if causation could be proved, the FAA has extensive regulations regarding radiation emissions of x-ray devices (14 C.F.R. §108.17 [1995]). That a device satisfies these regulations will serve as strong evidence, but not proof, that the device is not defective (Restatement [Second] of Torts § 288 C, 1977). However, merely satisfying the FAA regulations regarding radiation dose limits does not necessarily mean that a device cannot cause damage to people or to their property. Thus, manufacturers and operators cannot rely on these regulations to shield them from lawsuits involving radiation exposure. Privacy As discussed in an earlier section of this chapter, federal constitutional rights, such as the Fourth Amendment, are rights that individuals have to protect themselves against government actions. Tort rights, on the other hand, are rights that individuals have against a wide variety of entities, such as private persons and business entities, in addition to the government. Thus, while the Fourth Amendment protects an individual's privacy from unjustified government intrusion, privacy torts protect an individual's privacy from other individuals, including the government. In many states, law similar to the following exists: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly

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Page 41 offensive to a reasonable person" (Rest. 2d Torts §652B, 1977; Carter v. Innisfree Hotel, 1995; Harkey v. Abate, 1984). These cases might seem irrelevant to airport security screening performed in an airline terminal. Nevertheless, "even in a public place...there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze, and there may still be intrusion of privacy when there is intrusion upon these matters" (Rest. 2d Torts §652B, 1977). On the other hand, the ordinary inconveniences and annoyances facing modern society are not actionable. As discussed in the first section, what is considered an ordinary inconvenience is a highly individual perception that changes with experience and the perceived level of threat. Passenger screening technologies that reveal personal details may allow individuals to sue for damages, if they believe the information was used "improperly," or the search conducted without sufficient justification or in an excessive manner or scope. Operators of this type of equipment need to be aware of the necessity to protect individual privacy during security screening to minimize this type of action. ROLE OF THE FAA In passenger screening, the role of the FAA is significantly different from the role of the airport operators, the air carriers, or the contracting companies performing passenger screening for the air carriers. The FAA directs air carriers to perform a certain function. The FAA does not mandate the use of a particular equipment for performing that function. However, the FAA tests each piece of passenger screening equipment to certify that it meets the established performance criteria after it is installed in an airport. The FAA also tests metal-detector portals to assure their proper operation after they have been moved to a new location in the airport. (To assist air carriers in selecting screening equipment that will satisfy FAA requirements, the FAA maintains a list of vendors who sell such equipment. Air carriers, however, are not required to choose from this list, as long as the equipment, as installed in the airport, meets the FAA performance criteria.) Current passenger screening technologies appear to have been effective in preventing dangerous items from being carried onto airplanes. If the FAA mandates performance criteria that compel air carriers to purchase new passenger screening equipment based on new technology, then air carriers will require the FAA to demonstrate that a rational basis exists for the new criteria and that the new criteria are not arbitrary. This requirement will most likely lead to the need for new standards, in accordance with the Administrative Procedures Act, as was required for the certification of explosives detection systems. SOME POSSIBLE LEGAL CONCERNS ASSOCIATED WITH SPECIFIC SCREENING TECHNOLOGIES Imaging Technologies Imaging technologies, by their very nature, reveal much more about a person than other current passenger screening technologies. This is especially so because imaging technologies require operators to view the image. The greater possibility of discovering illegal, but nonthreat, items on a person opens the door for future illegal search and seizure accusations similar to those now encountered primarily in the area of baggage inspection. Guidelines calling for operators to focus only on objects that may be a threat to the airplane may be even more difficult to follow when operators are confronted by the image of an individual carrying a broad array of articles on their person. Fourth Amendment challenges based on illegal search or on an improperly carried out search must be expected when these technologies are implemented in airports. Concerns have been raised not only over the image revealing everything a person is carrying, but also over health risks from exposure to the radiation used to create these images. Air carriers and their contracting screening companies must be prepared to demonstrate that their equipment operates within the radiation dose range specified by the manufacturer and that these levels are safe for all people. Some of the imaging technologies now being investigated have the capability either to store the image data for future reconstruction or to print the image and create a permanent copy. These features are appropriate for a system employed to screen people entering a correctional facility. The unauthorized possession of weapons in a correctional facility is a federal offense, and the image data may be used as evidence in the prosecution of this crime. However, this ability to store and reproduce images may create the urge to archive data on people entering airports and to store the data at least until all flights have arrived safely at their destinations. The archiving of personal data on innocent persons probably would open the air carrier and its security contracting company to legal action, based on invasion of privacy. Data obtained using these imaging technologies will be highly sensitive, and issues involving their handling and disposal must be resolved before these technologies are implemented to screen people in airports. Some people may also be concerned about the external medical devices revealed in the images. Operators could even focus on these devices because they could be used to conceal a threat object. With current passenger screening techniques, individuals receive little attention until they set off the metal-detection portal alarm. When that happens, individuals are usually asked to empty their pockets. Most objects that set off the metal detector are common, everyday items such as keys or shoes. While most people choose not to display the

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Page 42 contents of their pockets casually, there normally is little objection to being asked to take out keys, money, or other objects that people carry with them. The resolution of an unidentifiable object in the image, which may or may not be a medical device, will be more difficult and probably more personal. Concerns over invasion of privacy are substantially stronger when personal medical conditions are involved. Trace-Detection Technologies Trace-detection technologies, to the extent that they can be made specific to detection of threat materials, are not expected to raise more legal problems than current passenger screening technologies. As in the case of imaging technologies, trace-detection technologies may reveal the presence of certain medicines because many of them are closely related chemically to explosive materials. Again, questions involving invasion of privacy will be raised as innocent materials are identified. Trace-detection technologies capable of identifying chemical signatures may also be used to identify the chemical signatures of illegal drugs. The use of this capability in the airport would constitute an illegal search because airport searches are authorized only to identify objects or materials that are a threat to the safety of the airplane. Air carriers and their contract security companies must be careful to ensure that their equipment is not designed or modified to detect materials that are not considered threat items in the context of airport and air travel security. People may also perceive a health or other threat (e.g., germs) from trace-detection technologies that contact the person, especially if many are contacted without cleansing between persons. Tort lawsuits based on uncleanliness are possible. Nonimaging Electromagnetic Technologies Assuming improvements in current passenger screening devices do not change the passenger-system interface appreciably, there should be no reason to expect major differences between the current and future legal issues associated with nonimaging electromagnetic technologies. Indeed, if the technology improved so that only threat objects would be identified, there would be less basis to support a claim of an illegal search, on the theory that individuals cannot legitimately have expectation of privacy for illegal items. Technologies designed to more specifically locate and identify threat objects, other than those that will trigger alarms in present-day systems, reduces some of the legal concerns over this type of passenger screening. Nonimaging dielectric portals based on microwave irradiation are likely to raise health concerns similar to those raised over the imaging technologies, but without the concerns about image data storage and projection. SUMMARY Legal questions surrounding the implementation of new passenger screening technologies fall into two categories: (1) potential claims of violations against an individual's right to protection from unreasonable search as specified under the Fourth Amendment to the U.S. Constitution and (2) potential claims of injury to physical or other interests due to the screening process.5 In general, courts have found that current screening technologies constitute a reasonable search under the administrative search exception to the Fourth Amendment, even if the search reveals personal information other than the presence or absence of dangerous materials. New technologies are likely to be considered in the same light, taking into account the degree of intrusiveness of the search procedure, the magnitude and frequency of the threat, and the sufficiency of alternatives to the search or screening procedure. The courts also will consider the effectiveness of the search in reducing the threat and whether sufficient care has been taken to conduct the search as narrowly as possible, while maintaining effectiveness. Technologies that specifically identify only threat objects are likely to face the fewest legal obstacles. New technologies used as a secondary screening technique (i.e., used only for screening specially profiled passengers or those who set off the portal metal-detector alarm) probably will fall under the stop-and-frisk exception to the warrant requirements of the Fourth Amendment to the U.S. Constitution. Tort claims are difficult to make in the context of passenger screening for several reasons. First, the FAA and the air carriers who operate security equipment for screening mandated by the FAA frequently have a claim of immunity if they are acting under the discretionary function of the FAA. Second, it is probably difficult to prove that the passenger screening device or process caused the injury. However, manufacturers and operators of security-screening equipment cannot assume they have impunity. As with any product used by the general public, manufacturers and operators must be aware of potential injuries resulting from the use of their products. Many of the legal issues discussed in this chapter are less of a concern to the FAA than to air carriers operating the screening checkpoints or hiring contractors to operate them. In the case of current screening technologies, the legality of 5 Although not discussed, in the latter category there may also be tort claims for assault and battery, false imprisonment, trespass to chattel, negligence, fear of injury (as opposed to actual injury), etc. But assuming the procedures are properly justified, manufactured, deployed, and operated, viable defenses will probably present themselves.

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Page 43 the search itself usually has been upheld, but questions frequently have been raised regarding the screening procedure used in individual cases. Air carriers and contracting companies would benefit from technologies that issue fewer false alarms and more specific alarms to allow personnel to resolve alarms without gaining irrelevant information. New performance criteria, which require the use of new technologies, may be of concern to the FAA if the only way air carriers can satisfy the new criteria would be to violate an individual's rights under the Fourth Amendment. In that case, the FAA may be enjoined from mandating such performance criteria. The FAA must also ensure that new performance criteria are reasonable and consistent with the statutory authority of the FAA to impose such measures.