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Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
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. Tort 1 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.
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, 2 then 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.
Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
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).
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.
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
Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
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.
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.
Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
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.
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.
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.
Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
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.
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 justificationsomething more than an inchoate and unparticularized suspicion or hunchto 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 personsas opposed to the administrative search, which is directed at placesit 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.
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.
Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
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.
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.
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
Suggested Citation:"7 LEGAL ISSUES." National Research Council. 1996. Airline Passenger Security Screening: New Technologies and Implementation Issues. Washington, DC: The National Academies Press. doi: 10.17226/5116.
