TSA searches lack probable cause

I’ve already ranted about the TSA’s invasive groping and scanning in the name of national security, so I won’t launch into that again. However, I do want to lift my glass to the New Hampshire legislature for proposing a law that would criminalize such behavior.

As noted in its introductory text, the NH bill (HB628-FN) “makes the touching or viewing with a technological device of a person’s breasts or genitals by a government security agent without probable cause a sexual assault.” It goes on to specify the following do not constitute probable cause: “discussing or possessing a copy of the Constitution, discussing the security apparatus of an airport, being on the premises of an airport, possessing an airplane ticket or any other type of ticket for access to mass transportation, driving a motor vehicle on a public way, or ownership of firearms.”

I doubt a state can enforce such a law against the federal government, but at least New Hampshire pinpoints the problem: probable cause or the lack thereof.

It’s well established that the police must have probable cause to stop you on the street. They need probable cause to search your car. And searching your home or business requires probable cause. Yet TSA agents, in addition to pawing through all your belongings, can grope you and photograph you virtually naked — without any probable cause. None whatsoever. If they had to show probable cause, they’d have to profile and search only those people who look or act suspicious. And we all know profiling, however logical it might be in this case, is either politically incorrect or illegal in this country. Of course, unreasonable search and seizure is also illegal (Fourth Amendment), but that doesn’t seem to bother the federal government.

Way to go, New Hampshire. You speak for many.

5 thoughts on “TSA searches lack probable cause

  1. Hey there…enjoyed the post. It’s nice to see states standing their ground against the feds. On a related note, recently the TSA has been exposed for working on mobile scanning units to be used at multiple venues. The technology is scary. Apparently, they can scan moving targets up to thirty feet to peer beneath clothes and inside bags. Take a look at my recent post: “TSA Discusses ‘Big Brother’ Type Surveillance.” Certainly if states can manage to fight the TSA on grounds of probable cause for groping, they can do the same in this situation.


    1. I might feel differently if these methods were catching terrorists, but so far the TSA hasn’t caught a single one. Money, manpower, constitutional rights — the cost is too high.

  2. Whenever I mention the Fourth Amendment, I get one of 2 responses; yesterday, I got a third: 1) agreement; 2) “Don’t fly. It’s a privilege, not a right”; and 3) Yesterday, U.S. vs Davis is mentioned as the basis of these searches being allowed [ http://boardingarea.com/blogs/flyingwithfish/2010/11/20/how-the-tsa-legally-circumvents-the-fourth-amendment/ ]

    What’s your take on US v Davis? Is it too vague, and/or being applied too broadly? After reading about Lori Dorn, I really don’t know how anybody justifies this treatment of U.S. citizens by their own Government.

    1. I wasn’t familiar with US v Davis, but now that I am, I’d say it is both too vague and too broadly applied. Of course, so was the Patriot Act. If the government is going to trample our rights anyway, they should at least do it with purpose and profile in accordance with the best intelligence community methods for spotting and tracking terrorists. It’s stupid to observe the niceties of “we can’t profile” but run roughshod over the Fourth Amendment.

... and that's my two cents