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APPENDICES
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Appendix A
Laws, Regulations, and Treaties
FEDERAL STATUTES AND REGULATIONS
Anti-hijacking or Air Transportation Security Act of 1974 (Public Law 93-366) August 5, 1974. This law provided the statutory basis for the December 5, 1972, rule and ''as part of its obligation under this Act, the FAA began a research and development program that emphasized the development of devices to protect air travelers against acts of criminal violence and aircraft piracy." (NRC. 1993.)
International Security and Development Act of 1985 (Public Law 99-83). This act provides for Federal Air Marshals, expansion of FAA R&D, assessment of security at foreign airports, and approval of foreign air carrier security programs.
Aviation Security Improvement Act of 1990 (Public Law 101-604) dated November 16, 1990. This act has been described in the 1992 FAA Annual Report to Congress as "perhaps the most comprehensive, far-reaching legislative initiative designed to improve all aspects of aviation security. It mandates many regulatory actions affecting several agencies, requires new reports, creates new organizations and staffing requirements, and empowers the FAA to promote and strengthen aviation security through an expedited, more focused research and development (R&D) program."
INTERNATIONAL PROTOCOLS AND TREATIES
Hijacking and sabotage of air carriers are not unique to the United States. Incidents of this type have affected air carriers worldwide, and a number of cooperative efforts have been undertaken on the international level to recognize and develop cooperative agreements to assist in solving this vexing problem.
The Tokyo Convention of September 1963. This treaty recognizes the inviolability of a hijacked aircraft and passengers, regardless of where the aircraft may be forced to land. The treaty provides that, in the event of a hijacking, the country where the aircraft lands must permit the aircraft, passengers, crew, and cargo to proceed to its destination as soon as is practical.
The Hague Convention of December 1970. The primary provision requires that every signatory state in which a hijacker is located must either extradite the offender to the state whose aircraft he hijacked or prosecute the hijacker. Signatory states must also provide severe penalties for the criminal offense of hijacking.
The Montreal Convention of September 1971. This convention provides for the application of principles of The Hague Convention to all crimes committed on board commercial aircraft. Elements included are: (1) violence against individuals aboard an aircraft, (2) damage to or destruction of an aircraft, and (3) placing devices or substances on an aircraft that could damage or destroy the aircraft, and (4) other crimes. The Montreal Convention also requires that states take all practical measures to prevent the commission of these offenses.
The Montreal Protocol of 1988. This protocol provides procedures for dealing with acts of violence against civil aviation at airports and ticket offices. The agreement was initiated as a result of terrorist attacks against the Rome and Vienna airports in 1987.
The Bonn Agreement. Signed on July 17, 1978, by the leaders of Britain, Canada, France, West Germany, Italy, Japan and the United States, this agreement was described in The Washington Post (July 18, 1978) as follows: "The heads of state and government, concerned over terrorism and hostage taking, declare that their governments will intensify their common undertaking to fight international terrorism. In cases in which a country refuses to extradite or legally prosecute airplane hijackers and/or give back such airplanes, the heads of state and government are unanimously agreed through their governments to take immediate action to cease all flights to that country. At the same time, their governments will implement steps to ban incoming flights from that country as well as flights by airlines of that country flying from any other country."
United States/Cuba Hijacking Agreement 2/15/73. This agreement provided for hijackers to be "returned to the party of registry of the aircraft or vessel or be brought before the
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courts of the party whose territory he reached for trial." Other portions of the agreement provided for facilitating "without delay the continuation of the journey of the passengers and crew innocent of the hijacking." The treaty was renounced by Cuba on February 15, 1977, although the Cuban government appears to have followed the intent of the agreement to the present.
International Civil Aviation Organization (ICAO). ICAO was established in 1944 by the Chicago Convention on International Civil Aviation. Annex 17 to the Chicago Convention establishes international security standards and recommended practices and requires member states to establish civil aviation security programs.
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Appendix B
Follow-up Information from Workshop Attendees
This appendix contains material received from workshop participants subsequent to the June 1995 workshop.
ALVY DODSON, AIRPORT LAW ENFORCEMENT AGENTS NETWORK
June 7, 1995
Thank you for allowing me to attend the panel discussion on passenger screening. I appreciated the opportunity to participate with such a distinguished panel of experts, and I found the discussion of potential screening technologies very enlightening. Per your request, please accept the following observations and comments:
· The public perception of increased health risks from exposure to radiation sources should be addressed in a forthright and generally understandable manner. This perception will also be shared by security company and airline employees exposed to the proposed equipment.
· The costs associated with the equipment and technologies being considered must be a major factor and every effort should be made to hold those costs to a minimum. Federal funding should be made available for the purchase of this new equipment.
· The size and subsequent space requirements of the proposed equipment will be a major concern to air carriers and airports.
· Statistically, over 95 percent of dangerous weapons discovered in the screening process occur in the x-ray examination of carry-on luggage. This fact does not, however, diminish the need to improve and enhance the capabilities of walkthrough magnetometers.
· The development of this new technology should take into account the human factors which must be factored into this equation. The competency level of security screening personnel and the ever present employee turnover rate require systems that are simple to operate and, as much as possible, automatic in terms of detection and alarm.
· The personal obtrusiveness of any technology must be reasonable based on the threat perception of the travelling public balanced with the actual threat dictated by the intelligence community.
Electromagnetic I and II technology appears very promising, but the revealing nature of the "picture" may well require a secluded or shielded viewing screen analysis by screening personnel. The ability to resolve an anomaly should not stop the on-going screening process while a resolution is determined. The ability to "print" the original image would be advantageous in case of the detection of a dangerous weapon or component.
· Although a minimal risk, public concerns regarding airborne and skin contact biohazards should be considered in the development of trace detection technology.
A closing comment, post investigative analysis of terrorist attacks against civil aviation reveal that those responsible do their homework prior to a mission. This homework includes a thorough, "scouting" of the airport/airline security systems which may impede that mission. The development of new technologies should take into consideration the historically correct fact that improvised explosive devices are the weapon of choice for terrorists and that the physical separation of bomb components would be considered by a terrorist in order to reduce the chance of detection. Methods to detect power sources, initiators and timing devices in addition to explosives should be included in the new technology.
Hopefully, the introduction of this new technology, whatever its final configuration, will greatly enhance the passenger screening system nationwide with ancillary enhancement of the weakest portion of our system . . . checked luggage.
SUSAN RORK, AIR TRANSPORT ASSOCIATION AND DEBORAH McELROY, REGIONAL AIRLINE ASSOCIATION
June 30, 1995
Thank you for the opportunity to participate in the National Research Council panel discussion regarding future generation passenger screening technologies which are currently in the research phase of development.
The Air Transport Association and the Regional Airline Association representing the U.S. major and regional
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passenger airlines, jointly submit the following comments and observations for consideration by the Committee on Commercial Aviation Security for report to the Federal Aviation Administration.
It certainly was an interesting discussion particularly the privacy issues raised by representative from the American Civil Liberties Union (ACLU). The potential use of millimeter wave technology will be determined by the extent of the penetration and it's effect on one's physical privacy. Such invasive technology must be designed to detect only items identified as a real threat to civil aviation. To what degree the public is willing to accept a graphic display of their body parts to detect a weapon or explosive device unless the threat can be substantiated warrants examination by the Committee.
The cost of any new technology , manpower and space modifications is the first and foremost concern of the airline industry. We emphatically believe that prior to requiring any new passenger screening technologies, the FAA must conduct an unbiased cost benefit analysis. We recommend the Committee include in their report a thorough analysis of the cost issue, bearing in mind that the airline industry purchases all passenger screening equipment, contracts the services for screening personnel and pays rent for airport space with no assistance from the U.S. government.
The potential for increased health risks from exposure to radiation must be simply explained to the travelling public and air carrier personnel who routinely under go passenger screening. The travelling public is not sophisticated enough to understand that film and portable computers can be safely x-rayed, thus resulting in numerous unnecessary physical searches. Based on previous experience, it is reasonable to assume that employing radiation based technologies would necessitate more private screening, thus delaying the screening process.
The report should address the time needed for passenger processing and analysis and resolution of images by an operator. A well designed passenger screening checkpoint should be capable of processing a passenger through a walk through detector in the same amount of time it takes to clear their carry-on luggage through an x-ray machine.
The air carriers are opposed to any technology which would require more manpower than is currently required at a checkpoint or any restrictions to our current staffing flexibility. Electromagnetic technology must project on the viewing screening an androgynous image so the analysis can be accomplished by a male or female screener.
Any new technology development should include an analysis of the human factors associated with the training and operation of the technology. It is important to note that security screening companies have a fairly high employee turnover rate, and most screeners have very little education above the high school level. Image interpretation must be simple and procedures for resolving alarms must not be complicated.
The airline industry supports all efforts to improve security screening process and recognize our role to insure the security of our passengers, and aircraft. We appreciate the opportunity to comment and wish the committee success in their endeavor.
Sincerely,
(signed)
Susan 0. Rork
Managing Director Security
(signed)
Deborah McElroy
Vice President
Regional Airline Association
Air Transport Association
MEG LEITH, ASSOCIATION OF FLIGHT ATTENDANTS
June 30, 1995
AFA's primary focus revolves around the continued health and safety of our flight attendants. We do not wish to place any flight attendants at greater risk than necessary. As a consequence, our major concerns regarding these technologies are: 1) the risk of increased radiation exposure from improved imaging techniques and 2) protection for pregnant flight attendants from intrusive body contact and an increased level of radiation exposure. However, the lively discussion at the passenger screening meeting laid most of our fears to rest. These are our thoughts, as requested, regarding the potential passenger screening technologies as presented.
A. ELECTROMAGNETIC I
Since this technique is essentially the same as the electromagnetic portal method currently in effect and is not expected to impact the travelling public, AFA foresees no problems with planned improvements.
B. ELECTROMAGNETIC II
This technique is extremely invasive in terms of privacy. Examples of the projected images of the screened subjects show naked physiques in great detail, including revealing images of genital areas. If this method were to be instituted on a regular basis, very strict monitoring controls would be necessary. These images would have to be observed in an enclosed area to insure an individuals privacy and protect their modesty. Only persons of the same sex as the individuals being screened should monitor these
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images. This would require separate screening lines for male and female passengers.
If this screening technique were only to be implemented at times when a significant Level 2 threat exists (as identified in the chart provided in Attachment A), AFA feels that flight attendants would be much more understanding and accepting of this level of screening, even without the privacy protections listed above. An example of this level of threat would be the June 1995 Unabomber threat to aircraft departing from Los Angeles International Airport.
C. TRACE DETECTION
AFA does not think that any of the techniques that were displayed present a problem to passengers or flight attendants passing through them. However, the turnstile arms must move freely (without much pressure exerted by the individual passing through) to protect pregnant travellers.
D. WANDING
Since this technique remains the back-up method to screen individuals who may have tripped off an alarm or for those who cannot or chose not to go through the regular electromagnetic portal screening process, AFA does not foresee any problems with the continued use of this method of screening. If the trace detection function is integrated into the hand wand search devices, it will not alter the process in any substantive way; consequently, we do not have any objections to this method.
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Appendix C
Selected Legal Cases Relevant to Aviation Security
Klarfeld v. United States, 962 F.2d 866,870 (1992): claim for injunctive relief for a Constitutional violation, seeking to ensure that the security procedures at the Los Angeles Courthouse were not enforced in a manner that violated the Fourth Amendment.
Hartke v. Federal Aviation Admin., 369 F.Supp. 741 (E.D.N.Y. 1973): claim alleging a violation of Article I §6 of the U.S. Constitution; U.S. Senator sought to have search declared unconstitutional, as applied to him, FAA regulations pertaining to airport searches, as Article I §6 provides that Senators are privileged from seizures en route to Congress.
Wagner v. Metro Nashville Airport Authority, 772 F.2d 227 (6th Cir. 1985): claim under 42 U.S.C. §1983 seeking money damages for a state violation of federal civil rights; affirming summary judgment against plaintiff after finding no state action.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971): alleging federal violation of federal civil rights.
Dow Chemical Co. v. United States, 476 U.S. 227, 237-239 (1986): aerial photography of a chemical plant to detect possible violations of Clean Air Act does not constitute a search when no effort is made to protect against aerial surveillance.
Lebron v. Nat. Railroad Corp., 115 S.Ct. 961,964 (1995): no constitutional problems without government action.
Vernonia School District 47J v. Acton, 115 S.Ct. 2386, 2390 (1995): upholding drug testing in schools; also noting the importance that the search was limited to student athletes where the risk of physical harm is particularly high; also, "the Fourth Amendment does not require that the least intrusive search be conducted"; at 2392: "by choosing to go out for the team [school athletes] voluntarily subject themselves to a degree of review even higher than that imposed on students generally."
Michigan Dept. State Police v. Sitz, 496 U.S. 444 (1990): allowing checkpoints for detecting drunk driving.
United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976): allowing checkpoint for detecting aliens.
United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th Cir. 1986): stating "a visual inspection and limited hand search.... is a privacy invasion we believe free society is willing to tolerate."
United States v. Epperson, 454 F.2d 769,771 (4th Cir. 1972): stating "the search for the sole purpose of discovering weapons and preventing air piracy. .. fully justified the minimal invasion of personal privacy by magnetometer."
United States v. Davis, 482 F.2d 893, 910 (9th Cir. 1973): stating "the potential damage to persons and property from [hijacking] is enormous. The disruption of air traffic is severe."
State v. Mark Anthony D., 433 S.E.2d 41 (W.Va. 1993): allowing strip searches only in exigent circumstances.
United States v. Epperson, 454 F.2d 769 (4th Cir. 1972): finding sufficient suspicion from the well known general danger.
LaFave (1987) at § 10.6(c): noting that it is not clear that the 1972 profile system failed even once, thus undermining the basis for switching to a universal application search.
14 C.F.R. §108.17(e) (1995): requiring notification "posted in a conspicuous place at the screening station and on the x-ray system which notifies passengers ... that [they are] being inspected."
Davis, at 912; contra LaFave, at §10.6(g): arguing that this offends common sense; if mere knowledge were sufficient to constitute consent, the government could subject anyone to a search notwithstanding the need, and the subject would be deemed to have consented.
United States v. Blake, 888 F.2d 795 (1989): consent to body search does not include groin area.
United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988): Federal Bureau of Investigation had limited time to intercept debarking Armenian terrorist on his way to a bombing.
N. Y. Times, July 8, 1994, at A 1: Los Angeles police, after the murder of the ex-wife of O.J. Simpson and after seeing bloodstains on a van parked outside his estate, feared someone inside might be in danger.
Klopp v. Wackenhut Corp., 824 P.2d 293, 300 (N.M. 1992): Wackenhut not responsible for Klopp's tripping over stanchion base of metal detector when it had no authority to reposition it.
San Diego Gas & Electric Co. v. Superior Court, 38 Cal. Rptr.2d 811 (1995): plaintiffs unable to prove injury from electric and magnetic fields from power lines near their home.
Reynard v. NEC Corp., 887 F.Supp 1500 (M.D. Fla. 1995): plaintiff unable to prove brain tumor promoted by use of cellular telephone.
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Carter v. Innisfree Hotel, No. 1940393, 1995 WL 277328 (Ala. May 12, 1995): allowing claim against hotel in which plaintiffs found evidence of a peeping tom.
Harkey v. Abate, 346 N.W.2d 74 (Mich. App. 1984): allowing claim against roller skating rink that placed hidden cameras in women's restroom.
THEORY AND PRACTICE OF SELECTED LEGAL ISSUES
Search or Seizure
The test for determining whether or not government observation constitutes a search is whether or not the defendant has a legitimate expectation of privacy in the place or thing searched (see Terry v. Ohio, 392 U.S. 1, 9 [1968]). This test has been applied with the practical result that government observation that reveals information only about the illegal activity of a defendant is not a search. (See, for example, United States v. Place, 462 U.S. 696,707 [1983], holding that the warrantless use of a canine sniff did not violate the Fourth Amendment because the canine sniff only disclosed the presence or absence of narcotics and not unlimited information about the items searched.) This result is premised on the principle that a defendant has no legitimate expectation of privacy for contraband. Therefore, if it is only the contraband that is searched, and not incidentally the defendant's pockets or briefcase, the Fourth Amendment simply does not apply.
In theory, higher technology should be able to obtain information with more precision, thus allowing government officials to protect public safety without being hampered by the Fourth Amendment. In fact, a recent example illustrates that this may be the case.
In recent years, drug enforcement agencies have used forward-looking infrared devices (FLIR) to establish evidence of indoor marijuana cultivation (see United States v. Field, 855 F.Supp. 1518, 1522 [W.D. Wis 1994]). FLIR detects differences in the surface temperature of targeted objects, and because indoor cultivation requires the use of high intensity growlights, the device is able to detect a large amount of relative heat radiated from those lamps (see Tracy M. White, The Heat Is On: The Warrantless Use of Infrared Surveillance to Detect Indoor Marijuana Cultivation, 27 Ariz. St. L.J. 295, 296 [1995]). The constitutionality of the warrantless use of the FLIR has been upheld in number of recent cases (United States v. Pinson, 24 F.3d 1056 [8th Cir. 1994], cert. denied, 115 S.Ct. 664 [1994]; United States v. Robertson, 39 F.3d 891 [8th Cir. 1994], cert. denied, 1 15 S.Ct. 1812 [1995]; United States v. Domitrovitch, 852 F.Supp. 1460 [E.D. Wash. 1994], aff'd on other grounds, 1995 WL 358624 [9th Cir. June 15, 1995]; United States v. Porco, 842 F.Supp. 1393 [D. Wyo. 1994]; United States v. Deaner, 1992 WL 209966 [M.D. Pa. July 27, 1992], affd on other grounds, 1 F.3d 192 [1993]; United States v. Penny-Feeney, 773 F.Supp. 220 [D. Haw. 1991], affd, 984 F.2d 1053 [1991]; United States v. Ford, 34 F.3d 992 [I Ith Cir. 1994]; State v. McKee, 510 N.W.2d 807 [Wis. 1993]).
The Eighth Circuit has upheld the constitutionality of the use of the FLIR device by the Drug Enforcement Agency on the grounds that the defendant had no legitimate expectation of privacy in the heat emanating from his home, the only information obtained (Pinson, 24 F.3d 1056, 1058). The Eighth Circuit opted to use a two-pronged formulation of the legitimate expectation of privacy test. Under this test, a legitimate expectation of privacy exists only where "(1) the individual manifests a subjective expectation of privacy in the object of the challenged search; and (2) society is willing to recognize that subjective expectation as reasonable" (Id., at 1058 [quoting Katz v. United States], 389 U.S. 347, 361 [1967] [Harlan J., concurring]). Applying this rule, the court concluded that even if Pinson had a subjective expectation of privacy in the heat emanating from his home, society was not willing to recognize that expectation as reasonable (Id., at 1058).
The Pinson court analogized the use of FLIR to two other types of cases (White, at 297). First, the court looked to California v. Greenwood, where the Supreme Court found that persons cannot have a legitimate expectation of privacy in garbage bags left at the curb, because those bags "are readily accessible to animals, children, scavengers, snoops, and other members of the public" and are placed at the curb for the express purpose of having a third party remove the bags (486 U.S. 35, 40-41 [1988]). Second, and more importantly, the court compared the use of FLIR to the use of drug sniffing dogs (Pinson, at 1058).
In United States v. Place, the Supreme Court held that the warrantless use of a canine sniff did not violate the Fourth Amendment because the canine sniff disclosed only the presence or absence of narcotics and nothing more (462 U.S. 696, 707 [1983]). The Place court reasoned that the canine sniff was less intrusive than a typical search and that the limited disclosure exposed the property owner to a minimum amount of embarrassment and inconvenience compared to other investigative methods (Id., at 707). The Pinson court analogized that because the sense-enhancing canine sniff could constitutionally detect odor escaping from a suitcase, the sense-enhancing infrared device could constitutionally detect heat escaping from a home (Pinson, at 1058). The Pinson court further reasoned that "none of the interests which form the basis for the need for the protection of a residence, namely the intimacy, personal autonomy, and privacy associated with a home, are threatened by thermal imagery" (Id., at 1059). Nevertheless, other courts have found that these interests are threatened by thermal imagery (United States v. Field, 855 F.Supp. 1518 [W.D. Wis. 1994]; United States v. Ishmael, 843 F.Supp. 205 [E.D. Tex. 1994], aff'd, 48 F.3d 850 [5th Cir. 1995]; State v. Young, 867 P.2d 593 [Wash. 1994] [dicta]).
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Therefore, these courts have found FLIRs to constitute a search under the Fourth Amendment.
The Ishmael court found the FLIR to constitute a search, because it was able to distinguish the FLIR from a canine sniff. First, the FLIR cannot distinguish between contraband heat and legal heat. Thus, the information revealed is more indiscriminate and more intrusive than a canine sniff (Ishmael, 843 F.Supp. 205, 213). Second, although a dog's sense of smell is more discerning than a human's, it does not parallel the use of an infrared device that can detect minute heat gradations from 1500 feet away (Id).
The first argument of the Ishmael court has been widely rejected because information gained from the surveillance does not reveal unlimited information, but only information restricted to one activity, heat generation (Deaner, 1992 WL 209996, at *4). The Ishmael court's second argument has also been widely rejected because although an infrared device is more sensitive than the olfactory sense of a dog, this fact alone does not make the comparison dissimilar. Both investigative methods involve sense-enhancing equipment to find criminal evidence that is otherwise not detectable by human sense. The degree of undetectability should not be the standard for measuring whether an investigative method is appropriate (White, at 300).
The Young court found use of the FLIR to constitute a search because it reveals information not solely related to the presence of contraband. "The device allowed officers to draw specific inferences about the inside of the house . . . which particular rooms a homeowner is heating ...., the number of people who may be staying at the residence" (Young, 867 P.2d 593, 598). At least one court has held that it is dispositive that the officers did not "see" inside the house. Because the observation in question tangibly produced only heat patterns, any other information must be just inferences that might be drawn from the infrared results (Domitrovitch, 852 F.Supp. 1460, 1474 [E.D. Wash. 1994]). Nevertheless, by requiring actual sight to make an observation, a search seems to ignore the very nature of modern technology.
The Ninth Circuit has remanded a case for more explicit findings on the technological capabilities of FLIR (UnitedStates v. Kyllo, 37 F.3d 526 [9th Cir. 1994]). Notably, the court stated that its analysis would be affected by "for example .. . whether this device can detect sexual activity in the bedroom ... or at the other extreme, whether it can only detect hot spots where heat is escaping from a structure" (White, at 308 [quoting Kyllo, No. 93-30231, 1994 WL 259823, at *3]). In other words, although the information obtained through the use of FLIRs might be merely about heat patterns, in order to avoid probable cause and warrant requirements of the Fourth Amendment, the inferences that can be drawn from that information may have to be limited to that regarding illegal activity.
Ishmael, Young, and Kyllo seem to not bode well for other technology-based searches. First, high resolution radars, for example, can interpret the reflection of a high-energy pulse in the form of an image (see Lisa J. Steele, The view from on high: satellite remote sensing technology and the fourth amendment, High. Tech. L.J. 6:317,333 [1991]). No inference even needs to be made. The information itself is broader than that related to illegal activity. Second, even though these three courts are in the minority, it is important to note that FLIRs have only be used to observe houses.
The home is one of the places most deserving of protection from government intrusion (Field, 855 F.Supp 1518, 1519; compare U.S. v. Knotts, 460 U.S. 276, 285 [1983] [finding government use of an electronic beeper to track the movement of a vehicle did not constitute a search]) with United States v. Karo, 468 U.S. 705,717 [1984] [finding that monitoring a beeper inside a residence did constitute a search]). Even canine sniffs constitute searches when done at a residence (United States v. Thomas, 757 F.2d 1359 [2d Cir. 1985], cert. denied, 474 U.S. 819 [1985]). Nevertheless, not even the home is as deserving of protection as a person's body (Sepulvida v. Ramirez, 967 F.2d 1413 [9th Cir. 1992], cert. denied, 114 S.Ct. 342 [1993]; York v. Story, 324 F.2d 450, 454 [9th Cir. 1963] ["we cannot conceive of a more basic subject of privacy than the naked body"], cert. denied, 376 U.S. 939 [1964]). For this reason even relatively unintrusive searches of an individual's person have been held to constitute searches.
The magnetometer, though minimally intrusive has been found to constitute a search within the meaning of the Fourth Amendment (United States v. Epperson, 454 F.2d 769 [4th Cir. 1972], cert. denied, 406 U.S. 947 [1972]). The x-ray scanner, certainly a more intrusive device than a magnetometer, has also been found to constitute a search (United States v. Henry, 615 F.2d 1223 [9th Cir. 1980]; contra Shapiro v. State, 390 So.2d 344 [Fla. 1982], cert. denied, 450 U.S. 982 [1982]). Pulsed radar scanners, which produce an image of an individual's naked body, are clearly the most intrusive of all security searching devices. Nevertheless, "with the Supreme Couit's recent laissez faire attitude toward law enforcement searches and seizures," the list of surveillance devices that fall outside the scope of the Fourth Amendment may well be extended (see Brian J. Serr, Great expectations of privacy: a new model for fourth amendment protection, Minn. L. Rev., 73:583,585; 1989; see also State v. Cannon, 634 S.W.2d 648 [Tenn. Ct. App. 1982] [use of a nightscope does not constitute a search]).
The old rule to determine what is and is not a search required a physical intrusion. This test was insufficient, however, to protect against invasions like wiretapping where no physical intrusion was made. The new rule, by not requiring a physical intrusion, seemed to give broader protection. Under the new rule, government conduct would constitute a search whenever it physically or otherwise invades an area in which the individual has a legitimate expectation of privacy (Rakas v. Illinois, 439 U.S. 128, 143-144 [1978]). Unfortunately, this rule is more amenable to interpretation than the old rule.
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Although there is little question whether the presence of police officers in your home constitutes a physical intrusion, there can be a big question whether your expectation of privacy in your bank records is legitimate. By mere participation in modern life, individuals surrender much information about themselves. What this has often meant in terms of the Fourth Amendment is that any expectations of privacy in these matters is, since they have already been exposed to some degree, no longer legitimate (see Lewis R. Katz, In search of a Fourth Amendment for the 21st century, Ind. L.J. 65:549, 563-575; 1987). The problem is that as technology advances it becomes easier to characterize information as exposed, because it is at all possible to detect it (Daniel J. Polatsek, Thermal imaging and the Fourth Amendment: pushing the Katz test toward terminal velocity, J. Computer & Information L. 13:453,476-479; 1995).
The Department of Justice seems to be counting on this sort of judicial response. Through the National Institute of Justice, the department is developing its own technology to address Fourth Amendment requirements (David Van Biema, Peekaboo: the new detector [Time, Mar. 27, 1995:29]). With the relaxation of concealed-weapons laws, the need to identify individuals armed with illegal weapons has grown dramatically. Yet, the Fourth Amendment prohibits frisking someone without reasonable suspicion. If technology could pinpoint a weapon at a distance of 12 feet without an invasive search, it might justify subsequent frisks and confiscation.
In any case, "it is doubtful that [airline] passengers today have [a reasonable expectation of privacy with regard to the intrusion]" (Lenett, at 564). The frequency of the intrusion argument failed 20 years ago (United States v. Davis, 482 F.2d 893, 905 [9th Cir. 1973]). Yet, "until only a few years ago . . . metal detectors were used primarily at airports, political conventions, the Olympics, and some rap shows. Now they're standard equipment at nightclubs, card clubs, schools, and almost all major concerts" (Deborah Sullivan, Metal detector sales rise with crime, L.A. Times [June 30, 1994:8]). By systematic practice, expectations of passengers have been reconditioned. Nevertheless, expecting to be searched at all is one thing. Expecting to be searched in a very intrusive manner is quite another.
Although people are searched more often nowadays, it is not at all clear that they are being searched in a more intrusive manner. Persons can have more of an expectation of privacy in a radar reflection pattern than in the heat escaping from one's home. Even if expectations not to be searched at all are no longer legitimate, there is no corresponding reason why expectations not to be searched in an intrusive manner are not still legitimate.
Government Conduct
If the first threshold element is satisfied and there is a search, then the next threshold element that must be satisfied for the Fourth Amendment to be applicable is that the search has been performed by the government. Private conduct, even if wrongful, is not subject to the Fourth Amendment (see Jackson v. Metropolitan Edison, 419 U.S. 345, 349 [1974]). Therefore, it is important to determine whether private airlines act as government "agents" when they search and screen passengers pursuant to a federal regulation.
The FAA requires airline to institute security procedures to screen passengers (14 C.F.R. §108). In the Ninth Circuit it has long been established that "the government's involvement in promulgating the FAA guidelines 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, 32 F.3d 1411, 1413 [9th Cir. 1994] [quoting United States v. Davis], 482 F.2d 893, 904 [9th Cir. 1973]). Nevertheless, even the Ninth Circuit has found some airline searches to be private conduct, and thus not subject to the reasonableness requirement of the Fourth Amendment. Such a finding is made when the court determines that the search was clearly not pursuant to the FAA regulations (United States v. Pierce, 893 F.2d 669 [5th Cir. 1990], cert. denied, 113 S.Ct. 621 [1992]; United States v. Gumerlock, 590 F.2d 794 [9th Cir. 1979] [airport shipment which was not subject to airport mandatory screening procedures was a private one], cert. denied, 441 U.S. 948 [1979]).
The Ninth Circuit approach is shared by the Eighth (United States v. Echols, 477 F.2d 37 [8th Cir. 1973] [holding that search is not government action when not done pursuant to FAA regulations], cert. denied, 414 U.S. 825 [1973]). Yet other circuits still find that airline searches, even when conducted pursuant to FAA regulations, constitute private conduct (see, for example,. United States v. Morgan, 774 F.2d 1215 [6th Cir. 1985]; United States v. Kevlian, 602 F.2d 1033 [2d Cir. 1979]).
The Supreme Court has not addressed the specific issue of whether airport security searches constitute government action. Yet, an important group of cases, Jackson v. Metropolitan Edison, 419 U.S. 345 (1974), Blum v. Yaretsky, 457 U.S. 991 (1982), and Rendell-Baker v. Kohn, 457 U.S. 830 (1982), stands for the principle that "unless the government affirmatively influences or coerces the private party to undertake the challenged action, such conduct is not state action for constitutional purposes" (Lebron v. Nat. Railroad Corp., 115 S.Ct. 961,980 [1995] [O'Connor J., dissenting]; the majority of the court did find Amtrak to be a government actor by virtue of the structure of Amtrak).
An application of this test to the airport security search leaves no doubt that security searches constitute state action; 14 C.F.R. §108 not just encourages but mandates that all airlines implement security programs (14 C.F.R. §§108.5108.13). These regulations are so detailed that they even describe employment standards for screening personnel (14 C.F.R. §108.31). The FAA can be though of as responsible for the searches (Blum v. Yaretsky, 457 U.S. 991, 1005
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[1982]). In contrast, the court found in Blum that decisions made by a hospital to discharge patients were not state action despite the fact that Medicaid regulations may have prompted those decisions. The actions in Blum turned ultimately on medical judgments made by private parties according to professional standards not established by the state (Id). In contrast, the FAA has not just mandated that searches be made, but has specified just how they must be made. It seems that the second threshold requirement of the Fourth Amendment is met. This means that airport security searches are subject to the Fourth Amendment. By no means do these searches necessarily violate the Fourth Amendment. This screening seems to fit into several Fourth Amendment exceptions.
KLARFELD V. UNITED STATES
Myron Klarfeld, an attorney, entered the U.S. Courthouse in Los Angeles and, even after removing all metal objects and his jacket, twice set off the magnetometer alarm (Klarfeld v. United States, 944 F.2d 583, 585 [9th Cir. 1991], en banc denied, 962 F.2d 866 [1992]). Klarfeld asked to be searched by the marshal's metal hand detector. However, the guard allegedly refused to do so and ordered Klarfeld to go back through the metal detector and remove his belt and shoes and place them on the metal detector (Id). Klarfeld argued that this was unnecessarily intrusive, since a hand-held magnetometer was available and would have enabled the marshals to determine whether he was carrying a weapon without removing his shoes. All three judges reversed a dismissal of Klarfeld's claim. One judge agreed not only with Klarfeld's main argument, but also with his argument that California lawyers have as extensive background checks as court personnel who do not get screened (Id., at 588 [Pregerson, J concurring]; but see Klarfeld, 962 F.2d 866, 869 [1992] [Kozinski, J., dissenting] ["screening is always intrusive ... there is no constitutional right to choose the particular screening method . . . to be subjected to"]).
UNITED STATES V. $124,570 U.S. CURRENCY
The court in United States v. $124,570 U.S. Currency found the search in that case not to be conducted pursuant to the narrow objective of ensuring airline and airport safety.
In $124,570 U.S. Currency, Flight Terminal Security (FTS) at Seattle International Airport noticed a dark mass in the briefcase of Wayne Campbell. Campbell, although initially reluctant, eventually permitted an FTS. officer to search the case behind a private screen ($124,570 U.S. Currency, 873 F.2d 1240, 1241). The officer discovered the large amount of cash, questioned Campbell as to his destination, and released him. The officer reported the discovery of Campbell's cash to the U.S. Customs Service. FTS officers are paid $250 for each report of sums of currency in excess of $10,000. Based on this report, Customs and Drug Enforcement Agency agents met Campbell when he arrived at Los Angeles International Airport and seized the money.
The Ninth Circuit noted the emphasis of the Supreme Court on the importance of keeping administrative searches free of the government's separate motive of criminal investigation (Id. at 1244 [relying upon Camara v. Municipal Court], 387 U.S. 523 [1967]). The court found that the close working relationship between the FTS and the local law enforcement at Seattle airport, along with monetary rewards, was likely to affect the actions of FTS agents in prohibited ways (cf. Dolan v. Continental Airlines, 526 N.W.2d 922 [Mich. App. 1995] [airline concerned about overzealous reporting fired ticket agent who did not follow internal reporting procedures]; compare United States v. Canada, 527 F.2d 1374 [9th Cir. 1975] [upholding seizure where there was no evidence of a cooperative relationship of financial reward]. FTS officers can only open packages pursuant to the approved objective of ensuring air safety (124,570 U.S. Currency, 873 F.2d 1240, 1246). The FTS agent in 24,570 U.S. Currency had no safety-related justification for further inquiry into Campbell's affairs after determining his briefcase contained no weapons of explosives (Id).
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Appendix D
Biographical Sketches of Panel Members
George Swenson, Jr., is professor emeritus of electrical and computer engineering and of astronomy at the University of Illinois, Urbana. His fields of specialization are electromagnetic and acoustic wave phenomena and radio astronomy. Dr. Swenson has served as head of the Departments of Astronomy and of Electrical and Computer Engineering, director of the Vermilion River Observatory of that university, and chairman of the Very Large Array (VLA) conceptual design group at the National Radio Astronomy Observatory. He has served on numerous National Research Council committees during the past 40 years.
Homer Boynton has extensive experience in security matters, including 25 years with the Federal Bureau of Investigation and 12 years with American Airlines as managing director of corporate security. He has chaired many advisory panels on airline security, including the Security Advisory Committee of the Air Transport Association and the Security Committee of the International Air Transport Association. He was a member of the FAA Research, Engineering and Development Advisory Committee.
Barry D. Crane of the Institute for Defense Analysis has a broad background in developing test and evaluation procedures for military hardware. He received his B.S. degree in physics from the U. S. Air Force Academy, and his M.S. and Ph.D. degrees in physics from the University of Arizona. He was responsible for developing drug-detection technology for the director of defense research and engineering until 1991. He is currently evaluating detection and monitoring capabilities of U.S. government surveillance assets used to find and follow air and maritime drug traffickers. He is also responsible for evaluating tactical aircraft testing for the director of operational test and evaluation, Office of the Secretary of Defense.
Douglas H. Harris is chairman and principal scientist of Anacapa Sciences, Inc. He has training in psychology, engineering, statistics, and military science and a Ph.D. from Purdue University in 1959. He has 36 years of experience in the analysis of systems operations, the measurement of human performance, the design and evaluation of human/machine systems, and the development of training programs and performance aids. He is a fellow and a former president of the Human Factors and Ergonomics Society, and a past chair of the NRC Committee on Human Factors and the Panel on Organizational Linkages.
Wilfred A. (Bill) Jackson received his B.S. degree in business administration from West Virginia University and his M.S. degree in management from George Washington University. In 1974 he graduated from the Industrial College of the Armed Forces at Ft. McNair, Washington, D.C. He served with the U.S. army for 26 years before being employed by the BDM Corporation, Mitre Corporation, BWI Airport, and the Airport Operators Council International. He recently joined the University of North Dakota as assistant professor at the Center for Aerospace Sciences. Mr. Jackson is accredited by the American Association of Airport Executives.
Jiri (Art) Janata is associate director of the Environmental Molecular Science Laboratory at the Pacific Northwest National Laboratory. He received his Ph.D. in analytical chemistry from Charles University (Prague) in 1965 and was on the faculty at the University of Utah for 20 years. His current interests include interphasial chemistry, chemical sensors and electroanalytical chemistry with particular emphasis on environmental applications. Dr. Janata has authored more than 120 papers and has 15 U.S. patents.
Kenneth Laughery is the Herbert S. Autrey Professor of Psychology at Rice University. He has published extensively in the area of risk perception, particularly with respect to the risks involved in common daily activities, such as driving and swimming. He teaches courses in psychology and engineering psychology, as well as in several areas of human factors and system reliability and safety. He chaired the President's Forum at the Human Factors and Ergonomics Society meeting on Human Factors and the American Consumer and has been a panel participant at the same conference in other areas of ergonomics. Dr. Laughery is a former president of the Human Factors and Ergonomics Society. Within the past year he has given keynote addresses at international ergonomics meetings in Brazil and Australia.
Harry Martz is the nondestructive evaluation research and development thrust area leader for Lawrence Livermore National Laboratory. He received his B.S. degree in 1979 from Siena College and his M.S. and Ph.D. degrees in 1986 from
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Florida State University. For six years he led the a project in applying computed tomography and x-ray and proton radiography to material characterization and gamma-ray gauge techniques to treaty verification activities. His current projects include the use of nonintrusive x- and gamma-ray computed tomography techniques as three-dimensional imaging tools to understand material properties and to assay radioactive waste forms.
Kenneth Mossman of the Department of Microbiology at Arizona State University has over 10 years experience in the effects of low-level ionizing radiation, especially in the areas of radiation risk assessment and risk perception. He has worked with the Commission on Life Sciences Board on Radiation Effects Research and is a member of the Committee for the Evaluation of the 1950's Air Force Human Testing in Alaska using Radioactive Iodine 131 (Commission on Geosciences, Environment and Resources, Polar Research Board). Dr. Mossman is a former president of the Health Physics Society.
Paul Rothstein is professor of law at the Georgetown University Law Center. He is a specialist in civil and criminal lawsuits and Supreme Court jurisprudence. He has been advisor to the Federal Judicial Center on Scientific Evidence, to the U.S. Congress (both the House of Representatives and Senate) on evidence and criminal law; to the National Conference of Commissioners on uniform state laws on uniform rules of evidence; and to a number of former Soviet countries on drafting new constitutions, individual rights, and establishing of a judiciary. He has been chairman of the American Bar Association Committee on Criminal Procedure and Evidence and chairman of the Association of American Law Schools Evidence Section, among others. Professor Rothstein received B.S. and J.D. degrees from Northwestern University. He received a Fullbright scholarship to Oxford University upon graduation from law school as first in the class and editor-inchief of the law review. He has published four books and approximately 100 articles in the area of judicial processes.
