Complaints About Changed Pat-Downs at Airports

As previous reported on our blog, the Transportation Security Administration (TSA) has changed the way it manually searches passengers. In the three weeks since the TSA began more aggressive pat-downs of passengers at airport security checkpoints, traveler complaints have poured in.

As reported in today's NY Times, some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerlessness and humiliation. In general passengers are saying they are surprised by the intimacy of a physical search usually reserved for police encounters.

The agency has so far responded to the complaints by calling for cooperation and patience from passengers, citing polls showing broad support for the full-body scanning machines. Still, it remains to be seen whether travelers approve of the pat-downs, especially as millions more people experience them for the first time during the holiday travel season.

Critics also question whether the pat-downs will survive legal scrutiny. On Tuesday, two pilots filed a lawsuit against the Department of Homeland Security and the Transportation Security Administration, claiming that the new screening procedures violate Fourth Amendment rights against unreasonable search and seizure. But legal experts are divided over whether the courts will find the searches reasonable.

“For Fourth Amendment purposes, you can’t touch somebody like this unless you’re checking them into a jail or you’ve got reasonable suspicion that they’ve got a gun,” said John Wesley Hall, a criminal defense lawyer who specializes in search and seizure law. “Here there is no reasonable suspicion,” he said. “It’s the pure act of getting on a plane.”

But Orin S. Kerr, a law professor at George Washington University, said the courts had generally supported the government’s claims in cases involving airport screening, although new cases would have to balance the more invasive nature of current search procedures with the government’s security needs. “Reasonableness is a murky standard, so there’s room for a new legal challenge,” Professor Kerr said. “But the tenor of earlier cases is pretty deferential to the government.”

The Electronic Privacy Information Center has also filed suit against the Department of Homeland Security, arguing that the body scanners violate Fourth Amendment protections as well as other federal laws. The group is weighing how to respond to the pat-downs, calling for a stronger response from the government to passenger concerns.

In an effort to give travelers more of a voice, groups including the privacy center, the U.S. Travel Association and the American Civil Liberties Union, are soliciting feedback about passengers’ experiences at airport checkpoints, collectively gathering more than 2,000 reports since the new pat-down policy took effect late last month.

“What I’m hearing is some real inconsistency,” said Kate Hanni, executive director of FlyersRights.org, which operates a hot line for passenger complaints. “There seems to be a huge variation in how they’re patting people down.”

Representatives from the various groups say reports about security agents’ behavior run the gamut from respectful and apologetic to aggressive and hostile, with male and female passengers seemingly equally bothered by the searches. Disabled travelers, parents traveling with children, victims of sexual assault and people with medical devices or health issues have expressed concerns about how the new policy affects their ability to fly.