Airline Passenger Security Screening New Technologies and Implementation Issues (1996) / Chapter Skim
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7 LEGAL ISSUES
7 LEGAL ISSUES
Pages 34-43
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From page 34... ...
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 stipu lating that any search conducted must be made on reasonable grounds.
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From page 35... ...
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.
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From page 36... ...
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.
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From page 37... ...
The fine point of this argument is whether info~-~ation 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.
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From page 38... ...
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.
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From page 39... ...
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.
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From page 40... ...
Product Liability ~ or -- -- _ - ~-~ ~ Privacy Manufacturers and operators of a wide variety of products have been found liable for injuries or perceived injuries AIRLINE PASSENGER SECURITY SCREENING 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.
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From page 41... ...
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.
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From page 42... ...
Nonimaging dielectric portals based on microwave irradiation are likely to raise health concerns similar to those AIRLINE PASSENGER SECURITY SCREENING 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)
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From page 43... ...
New performance criteria, which require the use of new technologies, may 43 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.
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