Some thoughts on the constitutional issues of TSA searches

[Quantum Windbag]

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 a reason to conduct a more probing search.” As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests. . . .
U.S. courts have held that “routine” searches of all travelers can be conducted at airports as long as they don’t threaten serious invasions of privacy. By contrast, “non-routine” searches, such as strip-searches or body-cavity searches, require some individualized suspicion — that is, some cause to suspect a particular traveler of wrongdoing. Neither virtual strip-searches nor intrusive pat-downs should be considered “routine,” and therefore courts should rule that neither can be used for primary screening.

The Volokh Conspiracy Are the New TSA Airport Scans and Pat-Downs Unconstitutional?

I still think that they have to prove a procedure actually works before they can consider implementing it, and this does not work.