Thursday, June 2, 2011

Don't Mess with (or Grope) Texas

To date, eight states, including Alaska, Washington, New Hampshire, New Jersey, and Pennsylvania have pending legislation concerning airline passengers' rights through airport security.  Texas became the latest to pass a law that would make it a crime for airport security officials to conduct pat-downs that, well, include the intentional touching of airline passengers' private parts.


Texas Representative David Simpson said the bill—HB 1937—states that a Transportation Security Administration ("TSA") official commits an offense if s/he "without probable cause performs a search for the purpose of granting access to a publicly accessible building or form of transportation and intentionally, knowingly, or recklessly touches the anus, sexual organ, buttocks or breasts of the other person."
"You can't go to third base without giving us a reason," Simpson said. 

The legislation has invited a forceful response by the United States Department of Justice ("DOJ"), threatening literally to cancel all flights to and from Texas if the bill is enacted into law.  Said John Murphy, U.S. Attorney for the western district of Texas, in a letter to leaders of the Texas state legislature: "As you no doubt are aware, the bill makes it a crime for a federal Transportation Security Official (TSO) to perform the security screening that he or she is authorized and required by federal law to perform." 

The Texas legislature actually has withdrawn the bill given the DOJ's stance.  

Meanwhile, as of January 2011, the TSA has deployed 486 Advanced Imaging Technology ("AIT") scanners to approximately 78 airports nationwide.  In the past month, several airline passengers have sued the government on the basis that use of AIT scanners and alternative enhanced pat-down procedures violates the Fourth Amendment of the Constitution and a right to privacy and interstate travel.  Such lawsuits have been dismissed on technical procedural grounds, however.  See, e.g., Redfern v. Napolitano, 2011 WL 1750445 (D. Mass. May 9, 2011); Corbett v. United States, 2011 WL 2003529 (S.D. Fla. Apr. 29, 2011).

Specifically, the federal government has argued that its Standard Operating Procedures ("SOPs") giving rise to certain challenged security processes can not be heard by trial courts, but only and exclusively in federal appeals courts under 49 U.S.C. 46110.  Trial courts have agreed, finding that TSA "orders" can be challenged, if anywhere, only in federal courts of appeal.  Courts have held the following are "orders" under Section 46110: (i) the requirement for airline passengers to present identification prior to boarding; (ii) TSA security directives establishing No-Fly or Selectee lists for enhanced screening; (iii) the use of X-ray devices for inspecting carry-on baggage; and (iv) security directives to commercial airlines charged with screening passengers.

These decisions, coupled with recent Texas-DOJ showdown over anti-groping laws, exemplify how difficult it is simply to enact laws or sue to make airport security easier or less burdensome.

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