Law professor Jeffrey Rosen has an excellent analysis of why the TSA’s new searches are unconstitutional. He notes that, even if the majority of people aren’t too bothered by the searches, that doesn’t change the fact that they appear to be illegal. This is even though the courts have generally been quite deferential to the government when it comes to claims of “national security” in doing things like preventing terrorism. He notes that, while the Supreme Court has not heard such a case, there are various appeals court rulings that set the standards for such searches:

the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that “a particular airport security screening search is constitutionally reasonable provided that it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.’ ”



In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both “minimally intrusive” and “effective” – in other words, they must be “well-tailored to protect personal privacy,” and they must deliver on their promise of discovering serious threats. Alito upheld the practices at an airport checkpoint where passengers were first screened with walk-through magnetometers and then, if they set off an alarm, with hand-held wands. He wrote that airport searches are reasonable if they escalate “in invasiveness only after a lower level of screening disclose[s] a reason to conduct a more probing search.”

Of course, as Rosen notes, the new searches do not pass that test by a long shot. He also points out that an analysis of the machines suggests that — despite claims to the contrary by the TSA — new research shows that last year’s underwear bomber would not have been caught with these machines, which suggests that such machines are not “effective” under the above basic definition. Perhaps the Supreme Court will finally weigh in on this topic… though, by the time it reaches that level, the TSA will probably have moved on to even more ridiculous security theater practices.

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