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Comment by avn2109 | Hacker News Reader

All those problems you mention are real, but they're not the main problem. The real problem with the TSA is that it's explicitly unconstitutional, since the 4th amendment explicitly prohibits search and seizure without a warrant.

"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."

This does not at all describe the operation of the TSA's search and seizure. Notably, the statute's language makes no allowance for implicit consent based on location or attempting to use some private transportation system. A sensible compromise is to privatize airline security, since the constitution does not prohibit Delta employees from searching and seizing without a warrant.

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> In Davis and its progeny, we have established a general reasonableness test for airport screenings. “An airport screening search is reasonable if: (1) it is no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives; (2) it is confined in good faith to that purpose; and (3) passengers may avoid the search by electing not to fly.” Torbet, 298 F.3d at 1089 (citation omitted); see also Davis, 482 F.2d at 913; Pulido-Baquerizo, 800 F.2d at 901. (U.S. v. Marquez, 9th Cir. 2005)

You definitely don't have to agree with the correctness of this line of cases; you should just be aware that the courts have looked at the question and have a theory they've been pursuing for about four decades about why totally suspicionless searches are "reasonable" and hence constitutional in this context. A tricky thing about the fourth amendment text is that it talks about what the requirements are to get a warrant, but doesn't explicitly say whether searches without a warrant are exactly the same as "unreasonable" searches. Courts have interpreted this for a long time to suggest that some kinds of searches without a warrant are nonetheless "reasonable", although Davis was a pretty enormous expansion; I wouldn't be surprised if searches pursuant to it are an absolute majority of all the searches performed by the government!

https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...

These precedents are interesting, thanks for bringing them up.

This gives me an idea for a constituency that might have standing to challenge Davis: Active-duty members of the military flying commercial, on orders, to remote locations accessible solely by air, who explicitly cannot "...avoid the search by electing not to fly" by orders of the same government that is searching them.

And yet, we can't exactly avoid the search by electing not to fly, as TSA sets up its VIPR teams.

Of course there is the whole issue of whether the line of reasoning is correct.

I don't know that it's there, but it would be eminently possible to assign to the act of buying a ticket agreement to be subject to these rigors. Indeed, I'm guessing it is true, but just haven't looked it up.

"Persons, houses and effects" is domain-dependent and cannot be made absolute.

If cupping my butt cheeks is not a "search of my person" then I don't know what is.

Searches don't legally constitute a violation of security. I agree it's disgusting.

Airport security was tested in the Supreme Court back in the 70s when it was new. Due largely to the fact that it reduced hijackings to almost nil, the court ruled that it was a reasonable exception.

That said, my personal opinion leans closer to your position.

It's not like the TSA is stopping people on the street, it's an agreement, if you want to enter the airport then volunteer for the search.

It's reasonable to get searched walking onto someone's airplane.

Yes, by employees of the organization operating that airplane. Notably, the constitution does not prohibit search and seizure performed by airline employees who are unaffiliated with the government.

Buying a plane ticket implies a consent to search.

Huh?

Surely an organisation (i.e. an airline, an airport) can enforce searches as part of the conditions of travel.

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