TSA 1

TSA - Are Their Processes of Searches legal and/or Ethical? MGMT-533 Legal Ethics Regulations Bases of Management

Aviation Security Funding . and the government answered their call by establishing the agency called Transportation Security Administration (TSA) in 2001. Their outcries are heard by Congressmen and women. According to Emerson. the travelers. society demanded an increase of security features.Are their Processes of Searches legal and/or ethical? Who does not remember the devastating day of September 11. After this day. but these features have also frustrated and infuriated travelers. The TSA has introduced various controls to safeguard us. which is addressed in the following text. Subtitle VII. Part C-Financing. from simple ID checks to Full Body Scanners. Sec. The rules of the agency itself are required to give announcement of a proposed rule. 37). and executive. citing Emerson (p. The funding for security features are regulated by the US Code Title 49 Transportation. state and federal government operates through agencies which are legislatively created (2010). An example of these notices is TSA¶s Notice to alter an existing Privacy Act system of records (75 FR 28042).TSA 2 TSA . we will look at what all the fuss is about. 2001 and the aftermath thereof? Just to reiterate. the TSA is facing legal and ethical issues. on this day thousands of people were killed due to terrorists crashing not one but two jetliners into the World Trade Center. These federal agencies have powers which are legislative. caught criminals who are on the government¶s watch list. The evolution of the security features have discovered people who might have done harm. through the evolution of security screenings. and thus have to conform with the constitutional law. requirements in the agency¶s own enabling act. judicial. who demand that Full Body Scanning be discontinued and have even filed suits against the TSA. Daily millions of travelers are subject to search when flying on any airline anywhere in the United States. as well as internationally. 48301. To understand the issues. 2010 respectively). according to the website of Democracy now and O¶Brien (2008. which have caused so much controversy. relevant general acts governing administrative procedure. and rules of the agency itself. However. and give interested parties the prospect to submit written or oral remarks (Emerson).

as from using a wand close to your skin. which are magnet wands. Nevertheless. but only by a patdown or better yet by the AIT. TSO¶s are required to perform a screening on each air traveler. as in violating the Privacy Act. there are legal and ethical issues arising with the use of the Full Body Scanner. The pat-down. the TSA is planning to install 450 AIT units across the United Sates by the end of 2010. to actually having bodily contact in the more private areas of the body. According to Barber. According to TSA Blog. X-Ray machines for luggage. As presented in the following paragraphs. pays for the diligent work every TSA Officer. This funding for the aviation security is established through the right of Congress to tax and use the funds for any general welfare purpose.000 per unit (2010). 48901) (Library of Congress. in order to decrease the wait time and the bodily contact. the Full-Body Scanner (2008). The pat-downs have increased their intensity. according to Esposito & Ross (2009). due to the ³Underwear Bomber´ (Umar Farouk Abdulmutallab) incident on December 28. performs. the reader can concludeif these screening processes are either illegal and/or unethical. 2010). With this in mind the taxes we pay. and the 4th Amendment of the U. which is either by a pat-down or by AIT.TSA 3 (49 USC Sec. which could be a reason for more conflict between TSO¶s and travelers. some call invasive. some critics view this machine as unethical.S. has taken place of the magnetic wands. 2009). Constitution. This type of chemical is not detectable by a magnetic wand. and others state that these scanners are vital to the security of air travelers. Umar Farouk Abdulmutallab wore briefs with a six-inch long container filled with the high-explosive chemical PETN sown into them and which could have easily overtaken and crashed the carrying plane (Esposito & Ross. the AIT is thought to be a better option. 2010). and also the Advanced imaging technology (AIT). 2009. Not only does the funding pay for the wages of the TSO¶s but also for the screening methods employed by the TSA. or also called TSO. which the TSA as an agency is a part of (Emerson. or in short the Full Body Scanner. The Full Body Scanner has been caught in controversy. President Obama allotted $1 billion for the aviation security project piloted by the TSA (Barber. However. 2010). illegal. . with the cost of up to $170.

if a traveler opts out of screening altogether. the Libertarian Party. The reasoning behind the intensified screenings. The TSA Blog has addressed a few of the myths surrounding the screening procedures currently in place. 2008). The first AIT machine was introduced in March 2010. as the TSA explains is to frustrate the planning of terrorists by incorporating mobile. but what about travelers. TSA states that the pat-down will only be initialized if the walk through the metal detector or AIT machine sounds the alarm. 2008 and Buono. The reasoning behind the possible violations is the creation of nude pictures of all travelers who go through the AIT. According to Kerner. due to violation of the Privacy Act and the Fourth Amendment(Persons. who have no intentions of harming anyone? Although. 2008). people would be frustrated. with a civil penalty of $11. 2010). intelligencedriven security processes (Kerner. but assure security. 2010). it is difficult to say if travelers are truly not complaining or if they just choose to abide by the rules and endure µtrotting like cattle¶ through the screening. .000. The AIT machine are human-operated and are designed to view concealed packets containing liquid bombs. which are not detectable by a metal detectors. Airline CEOs. which are also seen by the minimal complaints of more than 2 million people flying in the United States daily. The body scan has been boycotted and even caused legal proceedings against the TSA. who would contradict (Kerner. not only does this frustrate terrorists. The pat-down is not used as a µpunishment¶. and with that being said it is important to note that pat-downs are only performed by an officer of the same gender as the traveler (Kerner. but are now visible through the use of radiation and backscattering (which is comparable with an xray)(Eaton.00. and religious groups. consumer rights groups. 2009). which TSA is legally authorized to impose. unpredictable. or if the traveler opts out of either the metal detector or AIT machine. less than 3% of passengers receive patdowns. Electronic Privacy Information Center (EPIC). However. or knives. and has since caused legal and ethical issues(Barber. drugs. one might think seeing the long lines at the security checkpoints. 2010))? Thus. Conversely. by the American Pilots Association.TSA 4 The main issue with the TSA to date is the utilization of the Full Body Scans at airports.

1 With this in mind there is no ground to believe that the TSA and their screening procedures are violating the 4th Amendment of the U. another area which needs review is the fact of. Hartwell. Under 49 C. 2008).S. Constitution) However.F. which is considered the area after the screening. the degree to which the seizure 1 Examples of rulings are found in United States v.´ (U.´ In air travel a person does not have reasonable expectation of freedom from governmental intrusion. their houses. States v.TSA 5 Legally. Constitution. since the courts have deemed as constitutionally permissible. from all unreasonable searches and seizures.2d 496 (2d Cir. 1540. United States v. denied.107 and 1540.105(a)(2). Ct. shall not be violated by warrants issued without probable cause. In U. or procedures¶ applied to control access to the restricted area in question´ (Library of Congress. 1974). Gilmore v. and their other property. the courts found that the suspicionless checkpoint searches are permissible under the Fourth Amendment. Gonzales. or not particularly describing the places to be searched.3d 955 (9th Cir 2007) (en banc). or the persons or things to be seized. the legality of the screenings is covered under the Library of Congress. the 4th Amendment continues to clarify that ³«the capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion. their papers. or is able to claim a violation of the 4th Amendment.S. In addition. under the administrative search or special needs exception to the Fourth Amendment warrant requirement (Kerner. Constitution? The 4th Amendment states ³a person has the rights to be secured in their persons. when a court finds a favorable balance between ³the gravity of the public concerns served by the seizure. is the screening violating the travelers 4th Amendment of the U.3d 174 (3d Cir. 127 S. . measures.F. 435 F. 498 F. Aukai.). supported by oath or affirmation. Hartwell. 111 (2006). cert. Ct.S. Edwards. 127 S. denied.105(a)(2) gives the TSA the authority to demand an identification as a condition to access the sterile area. 929 (2007). 3d 1125 (9th Cir. 2010). Thus. the TSA has the right and duty to prohibit entry to the µsterile¶ area. 49 C. 436 F.S. United States v. §1540. cert. ³a person may not enter the sterile area µwithout complying with the systems. However.R. 2006). 497 F.R.

and children are subject to an . which TSA is a vital part of.C. a statute. which cover the collection of information retrieved from its employees and also in public. are (Persons. the controversy surrounding the legality of search proceedings of the TSA can be laid to rest. Texas) (United States v Christian Hartwell.C.regulates the gathering. (k)(2) and (j)(2)(Kerner. but there is also an ethical question as to who is viewing these pictures. nor 4th Amendment. 2011).S. The physicians of EPIC raise concerns about the vulnerability of certain groups which could be negatively impacted by the Body Scanner. since the TSA has successfully shown that they have abided by all the rules. and laws. TSA claims these exemptions for criminal investigation purposes.TSA 6 advances the public interest. regulations. 2010):  Travelers over the age of 65  Female population sensitive to radiation leading to breast cancer  Immunocompromised individuals  Children and adolescents  Pregnant women and fetus Not only is there a possibility of health risks. § 552a(k)(1). who are supposed to be especially vulnerable. In conclusion. 2005) The Privacy Act of 1974. the TSA did abide by the regulation Act of 1974 (Privacy Act FAQs. now. nor the Library of Congress has been violated by any of the proceedings conducted by the TSA or their employees. By disclosing their information and publishing many systems of records notice. 2011). in short a nude picture. which uses a small amount of radiation to create a picture of the traveler in order to find weapons or contrabands. Neither the Privacy Act of 1974. women. TSA does not only have the obligation to assure the safety of travelers but also to report to the law enforcement if criminal activities or acts are witnessed(Privacy Act FAQs. Left. § 552a). is to prove if TSA¶s screenings are ethical or not.S. and how are these pictures used. 2008). usage. and release of personal material collected by federal organizations (5 U. and the severity of the interference with individual liberty´ (quoting Brown v. These groups. The Implementation of Exemption allows the TSA to exempt portions of its enforcement of system of records from the access provisions of the Privacy Act in accordance with 5 U. if at all? The disturbing part of the entire process is that men.

the pregnant . then previous cases do show that it is at least very unethical to perform full body scans of either sex or age. In fear for her fetus. which states that ³strip searches that involve the visual exploration of body cavities are dehumanizing and humiliating´ (2009).. The TSA claims that the images taken by the AIT machines. The knowledge of strangers viewing a traveler naked is very disturbing especially when we think of children. 2009). Unfortunately. York v. Maricopa County Sheriff¶s Department. does the TSA use the same process for the viewing of the µnude¶ pictures? According to Byrd v. Although a person can opt-out of this procedure it is not widely known as we can see in the example below. If prisoners are afforded the right of receiving searches by same-gender correctional officers. Story. are very secure and safe and the exposure to the radiation could be equivalent to flying in an aircraft for two minutes in 30.2d 1521. is impelled by elementary self-respect and personal dignity´ The case cites another. travelers are able to opt out of the AIT machine and are able to receive a pat-down instead. However. Gardner. Moran explains that a pregnant woman was µbullied¶ through a Full Body Scan and was never given the choice to utilize the secondary screening procedure. In addition the case of Jordan v. Et AL. 1524 (9th Cir. and these are perfectly legal according to the cases addressed earlier. 2010). 2009). Although the TSO¶s (TSA Officers) assure that there is a same-gender officer available for the pat-down procedures. travelers should receive the same treatment when TSO¶s view scans. et al.000 feet (Barber. 986 F. and particularly strangers of the opposite sex. Thus if the procedures of screening is vital to our nations¶ security when traveling. The pregnant woman was tantalized by TSO¶s who claimed that the AIT machine is as harmless as an ultrasound and that she should just walk through the scanner. which are taken and reviewed within 20 seconds. ³The desire to shield one¶s unclothed figure from view of strangers. the pat-down (2010). As was explained earlier. states that the physical body searches of clothed female prisoners by male guards violated the Fourth Amendment because there was little if any connection between the cross-gender nature of the search and any legitimate government interest in security´ (Byrd v Maricopa County Sheriff's Department. there are concerns arising about the health effects of pregnant women and the fetus.TSA 7 AIT machine examination (Eaton. 1993) (en banc).

the court¶s decisions. Not once did the officers offer her a choice to utilize alternative screening (Moran. which is defined as the master (employer). During the scope of employment. According to Persons. The TSA is in charge of our nations¶ aviation security. there has been reported violence in September 2010. TSA is in the clear. traveling by air is still less frustrating than sitting in . exercising an abundant control over the servant (employee) (2009). Nevertheless. and the U. in which the employees perform work for the benefit of the employer or company (Jennings. but to some it might be. at the Miami International Airport. cases. instead of utilizing the AIT machine. they did not offer her a patdown. Not only is the legal grounds cleared. Thus in the situation with the TSO¶s and the pregnant woman. or if they would rather opt out of traveling. and the felt humiliation of travelers (2010). if the fetus or the mother were to have medical complications? According to Jennings. Thus as frustrating as it might be to stand in line and wait until it is the travelers¶ turn to be screened.S. clearly the TSA could be held liable for their officers and their product. thus they are attempting to assure just that. Constitution. Although the TSA officers had another possibility to assure that the pregnant woman is no threat to the other travelers. 2010). but the ethical question here is also answered. Is this considered to be unethical? Would TSA be liable for their TSO¶s and their product. these procedures are indeed legal. Of course the length of performing a pat-down cannot compete with the 20 seconds it would take to put the mother and the fetus through a machine. due to the use of full body scanners. there is a great deal of emphasis on yes. the conclusion on the subject if the TSA¶s screening procedures are ethical would have to be found within oneself. if they would like to utilize the Full Body Scanner (AIT) or the pat-down. As long as the TSA is not attempting to bypass the law or attempts to profit from these procedures. it is up to the individual travelers. the TSA officers and the TSA are in a master-servant relationship. this is defined as the time. 2010). However. For some the procedures might not be unethical.TSA 8 woman was in tears but did cave in and submitted herself and her fetus to the µminimal¶ radiation of the full body scanner. Thus are the TSA¶s screening procedures legal? Viewing the legal findings.

. the traveler does not have to use the luxury of traveling by plane.TSA 9 traffic for hours or driving for days to the other side of our country. In the end.

K. September 9). Retrieved January 11. C. (2010. Eaton. from The TSA Blog: http://blog.com/blog/kit-eaton/technomix/full-body-scannersairports-good-bad-and-ugly Emerson. 2011. R. Pregnant Traveler: TSA Screeners Bullied Me Into FullBody Scan. J. (2010.html Beahm. 2011.findlaw.fastcompany.pcworld. March 05). from FastCompany: http://www. N. Kerner. F. Inc.tsa. (2008. Retrieved January 31. (2009). TSA Installs Full-body Scanners to Screen Air Travelers.lawyers. 2011.com/injured/2010/11/do-airport-body-scanners-pose-healthrisks. M. Think Twice before Opting out of TSA Body Scan.com/article/190939/tsa_installs_fullbody_scanners_to_screen _air_travelers.com: www. Do Airport Body Scanners Pose Health Risks? Retrieved February 01. November 19). Furthering the Dialogue on IDs.html National Outcry over TSA Body Scanners and Invasive Pat-Downs. Retrieved January 24. 2011. 07-16640 (United States Court of Appeals For The Ninth Circuit July 24. 11 8). November 22).com/2010/09/pregnant-traveler-tsa-screeners-bullied-me-intofull-body-scan. Jennings. from Lawyers. (2009). (2009.TSA 10 References Barber. and Judicial Environment (8th ed). from Findlaw: http://blogs. J. from Democracy Now: . Discharge. (2010. Full-Body Scanners at Airports: The Good. the Bad. New York: Barron's Educational Services. It's Legal. Ohio: South Western Cengage Learning. Ethical.D. December 30). from The Consumerist: http://consumerist. Retrieved January 31. from PC World: http://www. Retrieved February 12. Damages. 2011. Retrieved January 31.gov/2008/02/and-now-word-from-ourlawyers. and the Ugly. and other Remedies (5th ed). Et AL. 2011.html Buono. (2010.html Moran. November 12). A.com/ourblog/archives/ Byrd v Maricopa County Sheriff's Department. 2009). 2011. (2010..

from Univeristy of California of San Francisco: http://www. . Controversy Continues over Full Body Scans at Airports. from ABCNews: http://abcnews. from Transportation Security Administration: http://www.S. E. 2011. 2005). December 28). from Marietta Injury Lawyer Blog: http://www.gov/research/reading/regs/privacy_act_faq. Photos of the Northwest Airlines Flight 253 Bomb.org/assets/news/2010/05/17/concern. Retrieved January 11. I. November 18).com/2010/11/controversy-continues-over-str. 04-3841 (United States Court of Appeals for the Third Circuit May 24. (2009. 2011. R.com/data/constitution/amendment04/ United States v Christian Hartwell.org/2010/11/19/national_outcry_over_tsa_body_scan ners O'Brien. 2011.mariettainjurylawyer. (2011). Retrieved February 11.html Privacy Act FAQs. from FindLaw: http://caselaw. Retrieved January 29. UCSF Scientists Speak Out Against Airport Full-Body Scans.lp.npr.democracynow. J.shtm Ross. (2010.findlaw.tsa. (2011). 2011. Retrieved February 01.com/Blotter/northwest-airlines-flight-253-bomb-photosexclusive/story?id=9436297 U.TSA 11 http://www. (2010. Retrieved February 22.go.pdf Persons. November 04). Constitution: Fourth Amendment. 2011.

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