Right to Privacy
In a short Facebook exchange the other day, the subject of "constitutional right to privacy" came up. I suggested that the constitution provides no explicit right to privacy. But of course, I then actually did some research. It would seem that the 4th amendment does a pretty good job at providing a right to privacy, though it doesn't use that word specifically:
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.
The specific issue that was being addressed is the pat downs (some would say groping) done by the TSA folks. It's clear to me that without probable cause (and I don't think that being randomly selected is that) the pat downs performed at the airport are unconstitutional.
Thoughts from the Ricoteers?
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Aug '10
Re: Right to Privacy
In the famous birth control case, Griswold v. Connecticut, Justice William O. Douglas wrote about "penumbras" and "emanations" in the Constitution affirming a "right to privacy" in marriage, or Zones of Privacy. This initiated a land rush of new "rights" issued by the Supreme Court. Thus, little by little, the courts gain control over our lives.
TSA pat downs are unconstitutional. But the problem remains. How can we maintain our safety in the air?
Nov '10
Re: Right to Privacy
River, in my bit of research I read some on that case, not much, but enough to know the decision was landmark in terms of privacy.
On your specific question, I think the word is profile. I believe it was Claire on one of the early podcasts who said, and I paraphrase: the problem with the TSA is they are looking for bad things, when they should be looking for bad people. She then pointed out how things are done in Israel. Having experienced the Tel Aviv airport, I can tell you she is right to look to them. They have it figured out. And they aren't randomly patting down 3 year old girls.
Aug '10
Re: Right to Privacy
Ken Owsley: River, in my bit of research I read some on that case, not much, but enough to know the decision was landmark in terms of privacy.
On your specific question, I think the word is profile. I believe it was Claire on one of the early podcasts who said, and I paraphrase: the problem with the TSA is they are looking for bad things, when they should be looking for bad people. She then pointed out how things are done in Israel. Having experienced the Tel Aviv airport, I can tell you she is right to look to them. They have it figured out. And they aren't randomly patting down 3 year old girls. · Jun 26 at 5:59am
I agree that a 'right to privacy' is implied in the Constitution, and Connecticut's 1879 birth control law was stupid. The problem came from Justice Douglas seeing the "emanations" and "penumbras"; which led to a woman's 'right' to an abortion, and so on. Where do the "emanations" stop? Now it's a "right" to health care. Why not a right to food, housing, transportation, jobs, self-esteem, and wellness?
Mar '11
Re: Right to Privacy
Once you've found sobriety checkpoints constitutional, it's hard to find groping by the TSA unconstitutional. Just identify an overriding public interest and you're good to go.
May '10
Re: Right to Privacy
The TSA is clearly a 4th Amendment violation, as is random checkpoints for anything (unless you are looking for a for someone specifically).
Jul '10
Re: Right to Privacy
All you would have to do to solve the problem of Constitutionality is privatize those agencies.
I find the jurisprudence on these Constitutionality issues perplexing.
Oct '10
Re: Right to Privacy
The danger is in taking an enumerated right -- i.e. the right to be free from unreasonable searches and seizures -- and extrapolating out of that a generalized right to privacy in all situations (which is certainly not in the Constitution), and then stretching that right to invent a different specific individual right -- i.e. a woman's right to destroy an unborn child.
But there's no need to address TSA searches in terms of a general "right to privacy", because the constitution provides a specific, narrow right to be free from unreasonable searches and seizures. So you can argue against TSA searches without scouring the mystical "penumbras" and "emanations" of the Constitution for new rights, which makes the argument against TSA searches much stronger, in my opinion.
Edited on June 26, 2011 at 4:41pmNov '10
Re: Right to Privacy
The TSA problem is in the words "probable cause". There is no blanket "probable cause" for the search and pat-down. Probable cause would arise out of reasonable association and psychological profile. A Swedish grandmother or a German 3 year old have no reasonable association nor would they demonstrate a psychological profile out of which probable cause would arise. The Israeli approach is the best by far to the air travel problem.
Apr '11
Re: Right to Privacy
Comparing DUI checkpoints and TSA groping isn't valid.
TSA gropes are pointless and stupid but not unconstitutional; you know what you're in for when you elect to fly. The TSA agent doesn't show up at your door (yet) and demand to cop a feel; you voluntarily appear at the TSA checkpoint for the pointless search.
DUI checkpoints, on the other hand, impact people engaged in a licensed activity (you could say that submitting to a DUI checkpoint is a condition of the licensed activity - as is submitting to sobriety tests). Again, the cops don't show up at your door, unbidden, to see if you're drunk; you get in your car and drive to the checkpoint (which here in KC, is advertised in advance in news coverage).
Jul '10
Re: Right to Privacy
Someday, the TSA will actually catch their first terrorist. Maybe not this decade, maybe not the next, but someday. Their existence finally justified, they'll become really, really obnoxious.
Mar '11
Re: Right to Privacy
You elect to fly in the same way that you elect to use a sidewalk or a road. The naked scans and the groping are unreasonable searches and violate the Fourth Amendment. The barking of the TSA agents at passengers as they go through the security checkpoints is creepily totalitarian but not, alas, illegal.
Mar '11
Re: Right to Privacy
KCRob
Comparing DUI checkpoints and TSA groping isn't valid.
TSA gropes are pointless and stupid but not unconstitutional; you know what you're in for when you elect to fly. The TSA agent doesn't show up at your door (yet) and demand to cop a feel; you voluntarily appear at the TSA checkpoint for the pointless search.
DUI checkpoints, on the other hand, impact people engaged in a licensed activity (you could say that submitting to a DUI checkpoint is a condition of the licensed activity - as is submitting to sobriety tests). Again, the cops don't show up at your door, unbidden, to see if you're drunk; you get in your car and drive to the checkpoint (which here in KC, is advertised in advance in news coverage). · Jun 26 at 8:26am
So cops can establish checkpoints to search everyone for anything illegal, just so long as you're driving a car at the time? Stolen merchandise checkpoints? Kiddie porn checkpoints? Sorry, KC. I'd like a little probable cause in the mix.
Apr '11
Re: Right to Privacy
It is legal soley because courts have ruled it so. It still violates the 4th, and will hopefully be struck down. As to real security, if only the TSA were actually effective! What they do is engague in Security Theater, going through motions that seem as though it would be effective to the average American traveler, yet can be seen through with only the most cursory observation.
I travel a great deal and am appalled by the Keystone Cop antics of most TSA agents. One day their ineptitude will result in real tragedy.
Jun '10
Re: Right to Privacy
Very funny, Sisyphus. I do have to agree with Alcina. One does not have to fly, as inconvenient as that decision might be. The TSA has become stupid and useless, but their mission is to protect the public choosing to use airlines and their job is performed in completely public spaces. Altering the methodology of the TSA would be a tremendous campaign issue for any candidate. It is really too bad that Michele Bachmann decided to discuss a constitutional amendment on gay marriage instead of attacking TSA for their worthless, yet inordinately expensive mission. One issue gains her broad based support, the other only balkanizes the electorate. It could be her undoing. What is wrong with allowing the States to vote it up or down? The process could take years and will allow for the true intentions of society to come forth. There are many more important battles to be fought at this time.
Jun '11
Re: Right to Privacy
I would agree pat-downs by TSA agents by the strict constitutional sense are unconstitutional; secure in their persons - no one in an airport at this time is secure in their persons everyone has an expectation of being stopped by any official looking person and submit to questioning and search if requested; unreasonable search - find anyone who believes the extent of these searches are reasonable and finally probable cause - only suspects who might appear to have criminal intent would cause probable cause.
Yes we can do this it is called profiling and discriminating against certain individuals for their known behaviors or origins (Which is what the Constitution was laying out in the first place. The founders knew governments would indiscriminately search whole classes of people to diminish those peoples freedoms - so they laid out governments limit to only discriminate against individuals when they were suspect.). But at this time everyone flying is the probable cause to be searched.
Apr '11
Re: Right to Privacy
Blake: The danger is in taking an enumerated right -- i.e. the right to be free from unreasonable searches and seizures -- and extrapolating out of that a generalized right to privacy in all situations (which is certainly not in the Constitution), and then stretching that right to invent a different specific individual right -- i.e. a woman's right to destroy an unborn child.
Edited on Jun 26 at 07:41 am
Exactly right. Long ago someone pointed out the level-of-abstraction sleight-of-hand. The "penumbras, formed by emanations" of the First, Third, Fourth, and Ninth Amendments language of Griswold was not invented by Douglas; it goes back to Cicero. As Justice Scalia has pointed out, the Ciceronian method of "stretching" precedent is typical of Common Law, but the Common Law tradition is not appropriate for applying Constitutional principles.
My own opinion, FWIW, but you asked, is that the TSA searches fall into the category of searches required for entry into a sensitive facility, i.e., not unreasonable and producing nothing criminally actionable. However, I would challenge the way they are conducted as being "unconstitutionally vague", which I think the Israeli screening is not.
Jun '11
Re: Right to Privacy
My solution:
Understand the Constitution as a document directed at the governing class on the limits of their power to govern. Take the government out of airport security and turn the whole thing over to the airlines and suddenly the problem is no longer with the government but with private companies (It is no longer state sponsored). Then you can have the old: "We reserve the right to not fly you if we don't like you or we think you are going to cause harm." Which at this point most airlines, state governments and the federal government bestow upon the captain on the plane. The idea is when you purchase a ticket you are agreeing to the requirements to fly with the airline (EULA) and their private employees. You supposedly cannot sign such an agreement or agree to give up your Constitutional protections with the government. - as a civilian.
Nov '10
Re: Right to Privacy
River: In the famous birth control case, Griswold v. Connecticut, Justice William O. Douglas wrote about "penumbras" and "emanations" in the Constitution affirming a "right to privacy" in marriage, or Zones of Privacy. This initiated a land rush of new "rights" issued by the Supreme Court. Thus, little by little, the courts gain control over our lives.
TSA pat downs are unconstitutional. But the problem remains. How can we maintain our safety in the air? · Jun 26 at 5:48am
Justice Hugo Black argued strenuously against Douglas insisting there is no right to privacy in the Constitution.
Airport searches are constitutional based on consent one gives by entering an area where one knows that it is a condition of one’s access.
We don’t need pat downs to make air travel safe. We need to get rid of the TSA and make way for more intelligent screening that looks for terrorists, not inanimate objects. The Israelis have shown how to do it. We should copy them.
Sobriety checkpoints are “legal” under of the DUI exception to the Constitution.
Sandra Day O’Connor used to conduct Supreme Court tours. I wanted to ask her where penumbras and emanations were kept.
Aug '10
Re: Right to Privacy
First, Rights outside those enumerated in the Constitution exist. The Founders thought so, both those who supported and opposed the Bill of Rights thought so.
Second, the Constitution isn't so much a government "limiting" document as a powers "enumerating" document. The Federal government created by the Constitution was meant to be a stronger central government than that under the Articles.
There are penumbras and emanations, they are consistent with the 9th and 10th Amendments -- if you want your Rights to come from the document which I don't -- that doesn't mean that those rights include murdering the unborn.
I'd also like to add that it is ridiculous that we are even asking if Police need a warrant to search cell phones. Is it not a "paper and effect?"
Jun '11
Re: Right to Privacy
Nathaniel, actually it does apply to cell phones: Merriam-Webster dictionary for "effects" -" 6. Movable property: Goods <personal effects>." If there is anything we should be secure in it is a cell phone which all see as "movable property." Thank you for clarifying "limiting" and enumerating. However enumerating just means listing of the powers. So by listing the powers the founding fathers were creating the limits to the Federal government i.e. limiting the powers of the Federal government.