The Constitution lives in airports

Scott Forsyth, The Daily Record Newswire

Whole-body image scans, walkthrough magnetometers, wand scans, X-raying of luggage, questioning of persons in line and detentions. These airport screening devices and methods can be very invasive.
Are they just another cost of flying today? Does the Fourth Amendment prohibition on unreasonable searches apply at all at airports? Yes, but in a diminished state.

Federal law charges the Transportation Security Administration with the task of screening all passengers and property to be carried aboard a passenger aircraft for the purpose of detecting explosives and other threats to transportation security, 49 U.S.C. § 44901.

The screening is considered a search, an “administrative search” to be exact. An administrative search, properly executed, is limited in scope and designed to carry out a regulatory scheme.
In the case of an airport screening, the scheme is to protect passengers and aircraft from harm, not uncover or thwart general criminal activity. Consequently, a screener need not have reasonable suspicion that a particular passenger has engaged in or will engage in a crime to screen the passenger. Nevertheless, the actions of the screener still must be reasonable.

There is no “bright-line test” of reasonableness in the airport context. Instead, in the words of one court, the screening must “(1) be no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives, (2) be confined in good faith to that purpose,” and (3) permit a passenger to avoid the search by electing not to fly, Torbet v. United Airlines, Inc., 293 F.3d 1087, 1089 (9th Cir. 2002).

Sounds good on paper, but who is going to challenge the actions of an aggressive screener in the rush to get to the gate? Nicholas George did.

Nicholas was flying back to Pomona College. He was studying Arabic and carrying a set of Arabic-English flashcards on his person. He had a single piece of carry-on luggage containing stereo speakers.
TSA agents at the Philadelphia airport pulled him from the line for a secondary screening. Nicholas fully cooperated with them, including showing them the flashcards. The agents passed the luggage. While one agent chatted Nicholas up about the Phillies, another called a supervisor to tell him about the cards.

The supervisor came over and asked Nicholas, “Do you know who did 9/11?” and “Do you know what language he spoke?” Nicholas answered “bin Laden” and “Arabic,” to which the supervisor responded, “Do you see why these cards are suspicious?”

Then a police officer, summoned by the agents, handcuffed Nicholas and marched him through the terminal to a police station. He was locked in a cell for four hours. Two FBI agents arrived and interrogated Nicholas for 30 minutes. They released him with the words, “You are not a real threat.”

Nicholas sued the government, alleging the TSA agents violated his First and Fourth amendment rights.

Nicholas acknowledged the agents could conduct a search of him, up and including the secondary screening. However, once they determined he was not carrying weapons or explosives, they could not search him further or detain him. They did not have any suspicion he was engaged in criminal activity. The search was more intrusive than necessary and not done in good faith. He accused them of handcuffing and jailing him in retaliation for his possessing Arabic-language material, a form of protected speech.

The government countered the actions of the agents were reasonable and not done in retaliation. Incredibly, it went further. The flashcards were not protected speech, because one or more contained the words “bomb” or “explosion” on them. At an airport, the possession of these cards was akin to making an actual bomb threat.

The district court ruled for Nicholas, George v. Rehiel, No. 10-586 (E.D.Pa. 2011). The government has appealed. The ACLU is representing Nicholas.

On behalf of all passengers hassled by TSA agents, here’s hoping Nicholas prevails on appeal. TSA needs to be reminded the Fourth Amendment does limit the behavior of its agents at airports.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or