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Security quotes of the week
Security through bad mouthing the messenger for raising the issue is
normally reserved for government ministers, IMHO it has no place here.
-- Alan
Cox
Of course, airport security is an extra-Constitutional area, so there's no
clear redress mechanism for those subjected to too-intimate patdowns.
-- Security QotW favorite Bruce
Schneier(Log in to post comments)
Security quotes of the week Posted Nov 25, 2010 10:31 UTC (Thu) by shane (subscriber, #3335) [Link]
Funny, I don't remember the Constitution mentioning anything about geographical areas where it does not apply. I guess the courts know better though. :(
Security quotes of the week Posted Nov 25, 2010 22:33 UTC (Thu) by marduk (subscriber, #3831) [Link]
It's small print in an asterisked area. The text reads:
Void where prohibited.
;-)
Security quotes of the week Posted Nov 26, 2010 2:29 UTC (Fri) by smitty_one_each (subscriber, #28989) [Link]
Although not necessarily prohibited in your voids?
Security quotes of the week Posted Nov 26, 2010 18:31 UTC (Fri) by wahern (subscriber, #37304) [Link] The Fourth Amendment says that "The right of the people to be secure ... against unreasonable searches and seizures, shall not be violated." Judge Friendly--one of the few appellate court judges who have held more sway than many Supreme Court justices--gave the standard justification for airport searches in United States v. Edwards (2nd Cir. 1974): When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air. Personally I have no problem going back to simple metal detectors. The skies are far more dangerous, if at all, by the fact that nobody checks their bags anymore. On the average flight the overheard compartment probably contains more weapons than it did in the 1970s just because the increase in carry-on-baggage has at least kept abreast of the effectiveness of our scanning practices if not surpassed it.
Security quotes of the week Posted Nov 26, 2010 23:19 UTC (Fri) by nybble41 (subscriber, #55106) [Link] The full amendment is "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis added)While I realize this is not a popular view, particularly among government officials, my plain reading of this text strongly implies that the authors did not intend for any search or seizure to take place without a warrant establishing the probable cause. Under that reading, it is not enough to simply say that a certain class of searches (or seizures) is "reasonable"; separate (and specific) warrants must be issued for each instance.
Security quotes of the week Posted Nov 29, 2010 21:03 UTC (Mon) by jzbiciak (✭ supporter ✭, #5246) [Link] That isn't quite how I read it. If a search/seizure is considered "reasonable" on its own merits, then no warrant is required. Warrants are required for searches and seizures that would otherwise be considered unreasonable.
Let's look at the judge's opinion again: When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air. His reasoning is that because the stakes are so high, the searches are reasonable in their own right (so long as they meet the other qualifying criteria in his statement). Therefore, no warrant is necessary.
Security quotes of the week Posted Nov 30, 2010 1:41 UTC (Tue) by nybble41 (subscriber, #55106) [Link]
I realize that the judge in this case does not agree. Honestly, I would not expect any government official, perhaps especially one associated with the judiciary, to take a strong position on requiring a warrant for any and all searches and seizures--it simply isn't to their benefit to limit their own powers. That said, I still believe the proper context for this amendment is that first you come up with probable cause, then you document it in a warrant for search and/or seizure (with specifics), and only *then* do you actually perform the search or seizure.
Even putting that aside, however, I would further disagree that mere risk satisfies any "test of reasonableness", or that the availability of other travel options has any effect whatsoever on the reasonableness of the search. A search is only reasonable if the one performing the search expects to actually find evidence of a crime, which is basically the definition of probable cause (as documented in a warrant). You can't just search everyone in the expectation that one time in a thousand you'll find something of interest.
Similarly, a seizure is only reasonable if the items seized are inherently illegal to possess, or if those doing the seizing honestly expect the items to be used as evidence in a criminal investigation. You can't just seize legal items at random and hold them for months (or longer) without any intention of filing charges for which they would constitute evidence.
Anyway, I really don't think the writers of that amendment could be so short-sighted as to start out with a phrase like "the right of the people to be secure in their persons, houses, papers, and effects ... shall not be violated" and then invite exactly that by leaving the interpretation of a vague concept like "reasonableness" up to the judiciary. That the conditions described for a warrant (probable cause, specific place to search, specific items to seize) constitute the *definition* of "reasonable" in this context seems to me the only sensible view.
Security quotes of the week Posted Nov 26, 2010 18:47 UTC (Fri) by wahern (subscriber, #37304) [Link]
Airport searches are probably less extra-Constitutional today than yesteryear. That's because prior to the TSA the people conducting the searches were private contractors of the airlines or airports. The Constitution doesn't generally apply to private actors. It would be more difficult to make a legal claim based on the Constitution against private contractors than it is against the TSA or particular TSA employees, no matter that the searches were mandated by law or regulation all along. With a private contractor a court would more easily find the encounter voluntary; less so when the government is sitting front-and-center between you and an entire mode of travel.
If it's extra-Constitutional it's because no judge would want to touch such a case with a ten-foot poll. Anyone trying to sue the TSA will probably need to forum shop, sadly.
Also, to successfully win a claim against a TSA employee you would have to show not only that the search was unconstitutional, but so unconstitutional that any reasonable person would know not to conduct it. But if you lost that first suit because of officer immunity yet were able to obtain a legal holding that the search was unconstitutional, then the searches would stop because no TSA employee would be immune from suit after that--any reasonable person would have to know after-the-fact that such searches were definitely unconstitutional.
(IANAL)
private contractors are used Posted Nov 27, 2010 0:22 UTC (Sat) by sbishop (guest, #33061) [Link] Yeah, I was surprised too. But it looks like the searches are sometimes done by private contractors:
private contractors are used Posted Nov 29, 2010 7:34 UTC (Mon) by brouhaha (subscriber, #1698) [Link]
If the searches are done by private parties under contract to the government, they are subject to the same Constitutional limitations as the government would be.
The government can't bypass the Constitution by having a contractor confiscate your printing press any more than they could confiscate it themselves.
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