This is a guest post by “Zagloba”.
This is not a story about rape.
In 9th grade, the edition of A Tale of Two Cities we were assigned had an introduction beginning with “This is a book about rape”. Such a pronouncement, of course, immediately leads the savvy reader to ask what happened to all the other things such a book is “about”: revolutions and tyrannies of the masses and guillotines and goodness knows what else. In ninth grade I was not a savvy reader, so I appreciated the reductionism. Of course, that kind of bluntness at the head of an introduction will inevitably color how the reader experiences the story, which is why I’m beginning this post in this way.
The strongest emotional appeals I have seen coming out of the new TSA screening policies have been sexual assault-related. It certainly makes for great outrage material to hear about rape survivors being groped by TSA personnel, and it’s a slam-dunk argument, both in face-to-face arguments and over the internet, that genital groping is completely ineffective as a security protocol. Indeed, the TSA may be realizing that the genital-area searches were a bridge too far for the general public.
The problem as I see it, however, is that the genital-area “enhanced patdown” is two bridges too far. And it is my very current fear that if the TSA agrees to stop touching passengers’ genitalia, we the Public will settle for that, leaving one of our most important and scenic bridges in “enemy” hands.
That bridge is the right to be free of unreasonable searches of our persons. This right is not as sexy as the right to remain sexually unmolested by the officers of the U.S. government; this is precisely why it is harder to assemble a coalition of active voices to pressure government to respect the right to be free of unreasonable search.
So, as I say, what follows is not a story about sexual assault, because thankfully none occured. It is, however, a story about an illegal search, a search which was performed under color of coercion, a search which violates an enumerated right guaranteed to me in the Constitution. What follows here is true, and I’ll swear to it in court if given the opportunity. Only the names of the agents involved have been redacted, and that is only because this complaint is not about them, their professionalism or their job performance. Their procedures were “by the book”; their courtesy to me unimpeachable. The complaint is that their job requires them to violate the law, and in a fundamental and low-level fashion.
Without further ado, then:
On 21 December 2010, at approximately 7:20 AM, I approached metal detector/checkpoint 2 at Nashville International Airport (BNA) en route to boarding a Southwest Airlines flight. When I reached the head of the queue, the TSO directing traffic requested that I pass through the backscatter imager. I responded that I was exercising my right to opt out of the scan. In that case, she said I would be subject to the enhanced pat-down and search. I asked her if she had probable cause for a search; she did not answer the question, instead reiterating that I was required to undergo either the scan or the search in order to proceed to the gate. She offered to call her supervisor to speak to me, which I agreed to.
Supervisor X met me outside the metal detector and repeated the statement that I would not be permitted to proceed to the gate without an enhanced screening. I want to emphasize the coercion inherent in this statement: the threat of harm (material loss) as penalty for non-compliance. I asked X if he knew that the search he was asking me to consent to would require a warrant or probable cause if performed by a law enforcement officer; he responded that it would not, due to the regulatory power of the federal government. Of course, the government can’t make illegal searches legal by writing a regulation, and I told him this and mentioned the legal challenges which are in progress across the nation. X had heard of these challenges, and when I brought them up he changed tack: did I have a preference between the two forms of screening? I did indeed have a preference: the pat-down had the overwhelming advantage that it can’t cause cancer.
Allow me to pause for an aside. Any internet lawyer will tell you that once the police have moved from asking if you mind them taking a look, to instructing you to get out of the car so they can search it, you comply and sort out the legality of the order later. I think that X was giving me an out, a way to get me to the gate and through his pipeline. The next time I am pulled out for enhanced screening, once the agent threatens to send me home if I don’t behave, my response will be, “I will not consent to any search unless you have probable cause. However, if you instruct me to undergo the pat-down, I will comply, under protest of course.”
There is a sort of diminishing returns to repeatedly pointing out to agents of the government when they are breaking the law in the course of their job duties. The reality of the situation is that they will win this round — we have to be playing the long game, not expecting that our individual protest will swing the situation to our side. When X instructed me then to please step this way and be searched, I didn’t bother reminding him again that it was an illegal order — he knew, or should have known, that already.
On the other side of the metal detector I was met by TSO Y and manager Z. Y was to perform the search, and Z stated that she would monitor the whole procedure to ensure that everything was done properly. I requested a notebook from my carryon luggage during the search; that request was denied, on the grounds that I had to be kept separate from anything that had already been security-screened until I had been cleared. Z did promise to assist me in recording any details after the search was complete, and did so.
Wearing a fresh pair of blue gloves, Y searched my upper body first, including shoulders, collar, and the sides of my torso. He informed me verbally before moving to each new area, neither asking for nor receiving permission. When Y gave instructions, such as to raise or lower my arms, I complied. After finishing with my upper body, he moved to the lower body, searching the waistband of my pants with his fingers and the inner and outer seams with the back of his hands. He did not search my genital area.
And then I was pronounced free to go. Like hundreds of thousands of others this week, my ability to see my loved ones and go about my business was conditioned on my giving up a fundamental right, or, in my case, having it taken from me without my consent. The difference at the level of the individual is, as I’ve explained above, academic: the government will win the individual battles. It is up to us, however, to bring the war to a battlefield where we have the advantage — first the court of public opinion, then the court of public law.
 Note to self: re-read A Tale of Two Cities.
 No, I’m not a “government is the enemy” type. In fact, I see a broad role for a vigorous and active government which uses the power of public policy to shape the sphere of commonly inhabited space, both real and virtual. However, every government must choose, actively or by default, to be either the guarantor or the enemy of the rights of its citizens; and the recent trend in the U.S. has been precisely opposite to public guarantee of privacy rights.
 But legal, if ineffective and counterproductive, regulations are the topic for another day.
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