The way I keep up with news about the Fourth Amendment is I have a stored Google-search that sends me stuff. I get things from newspapers, blogs, and websites, from the left and the right, sometimes extreme. I scan it all, but seldom post anything unless it has value (at least in my judgment) to the readers of this site.
This site went online in February 2003. Since then, without a doubt, the one topic of greatest interest with more Internet activity than anything else is the TSA’s desire to grope and frisk every airline passenger in America in the name of Homeland Security. This is just in the last three weeks or so, likely because it hits home to all those who fly, and I do at least one round trip every two weeks. I have encountered two full body scans: CLE two years ago and DCA this fall.
The outrage of everybody seems to be rising over this issue.
What little outrage there was over the USA PATRIOT Act was spread out over years, and it took years for people to realize that Congress had sold out their rights. Then came the GPS monitoring of movement of people, which has only stirred people up this year. Go back to this post from August about United States v. Pineda-Moreno, the Ninth Circuit’s GPS case: Media discovers August 27th that Pineda-Moreno was decided January 11th. This was a result of Chief Judge Kozinski’s biting dissent on denial of rehearing en banc issued in August that underscored the class distinctions underlying the Ninth Circuit’s rationale. Only then did the intrepid press discover what the court held seven months earlier.
One result of shrinking newspaper budgets is that most reporters don’t cover the news anymore. They seem to read the internet for stories to regurgitate. You have to go to the legal news to see what’s going on in the law. Plenty of us are doing it in our own ways because we are actually reading the cases and not just linking to news stories.
Maybe TSA’s recent actions will crystallize public opinion to again support the Fourth Amendment and notions of individual privacy. When it is a criminal involved, citizens are less likely to care. But, when you are forced to endure a frisk the same as being checked into a jail on a misdemeanor or suspected of having a weapon just to fly around the country ….
Sometimes I’m just stunned. What have we come to in this country? The terrorists have won, thanks to TSA’s mindset. Our liberties have been curtailed by actions of people outside the country that the government feels compelled to respond to. Like the boiling frog, our rights get a little narrower everyday, and few people are noticing it.
But, can you really blame today’s TSA? Didn’t the passage of the USA PATRIOT Act prove that Americans can be bullied about by the government in the name of Homeland Security?
Just follow Secretary Napolitano’s advice: Don’t want to be frisked? Well, drive instead of fly. How does that change our way of life? I can almost hear Mr. Rogers saying “Can you say ‘police state’?” We will never get over 9/11 because the government is going to be reminding us everyday in its actions.
Twenty-one years ago, Judge Kozinski wrote:
Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989). That quote has been on the sidebar here since this website started. Just search “Kozinski” on this website for his colorful dissents. Pineda-Moreno is here.
Update: A friend sent my Penn and Tenner’s Penn Julliette’s account of his grope-frisk at the Las Vagas airport. See also The Hill: GOP lawmaker: Full-body scanners violate Fourth Amendment by Elise Viebeck. WSJ blog: All-Seeing Airport Scanners Sparking Litigation and Protests, by Nathan Koppel. CNN Opinion: Body scanners, pat-downs violate law and privacy by Marc Rotenberg. There is just too much to post.
