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TSA Seeks to Expand the Airport Experience Into Everyday Life

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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December 20, 2011

The Los Angeles Times today reports on the TSA’s VIPR program, in which roving teams of security agents bring the joys of the airport security experience into bus and train stations, highways, the subway, and other transportation facilities around the country (a Daily Caller story on the program from earlier this year is here).

This program represents nothing less than a direct assault on the Fourth Amendment of the Constitution. It’s also an exceedingly dumb security measure. But never underestimate the mindless force of a government bureaucracy seeking to expand its power, domain, and budget.

The TSA describes VIPR (which stands for Visible Intermodal Prevention and Response) as “a team that’s made up of Federal Air Marshals, Surface Transportation Security Inspectors, Transportation Security Officers, Behavior Detection Officers and Explosive Detection Canine teams.”

This is a classic case of the slippery slope. The Fourth Amendment says that the government cannot carry out a search without probable cause. Over the years, the courts have carved an exception to that plain language for airports, where the government can carry out a limited “administrative” search solely for the purpose of protecting the safety of air travel (it cannot be a general law enforcement stop).

Know Your Rights When Traveling »

But the TSA’s power to conduct administrative searches at the airport does not mean the Fourth Amendment does not apply (click here for the ACLU’s Know Your Rights When Traveling guide). It means that the government has a very strong public interest that makes suspicionless searches reasonable in this context. But the TSA is trying to expand and manipulate that exception for law enforcement purposes – and drive a permanent hole in the Fourth Amendment.

Aircraft are special. Weapons and explosives pose unique dangers on airplanes that make them different from our other public spaces like crowded sidewalks, shopping centers, movie theaters, buses or trains. The justification for carving out an exception to our constitutional freedoms does not extend to these other venues. Ground transportation like trains and buses are regular public spaces, and they have been for ages (think of all the classic movie goodbyes that have taken place on train platforms).

Some might say, “Well we’re living in different times.” But security risks are not exactly something new. There is a long and varied and history of terrorist activity in the United States. The first decades of the 20th century, for example, saw numerous terrible bombings and assassinations (including of President William McKinley), the explosion of a bomb in the U.S. Senate, and many other incidents. Americans have lived through civil war, economic collapse, a surprise military attack on U.S. territory, dictators and world war on two fronts, and, for 50 years, the threat of nuclear Armageddon. Through all these threats, we mostly stayed true to our values and preserved our freedom. And when we didn’t, it didn’t make us safer and we always came to regret it.

Anyone who has traveled across America knows just how gigantic our nation is. In our country of over 300 million people, the 25 VIPR teams wander around, randomly searching and harassing citizens going about their private business, just in case they happen to intercept a terrorist attack. The government has never created bands of agents to roam around American society looking for those who are about to go on a shooting spree in their campus, office building, or local McDonald’s. The essential silliness of such an idea is self-apparent. But such shooting sprees – though they are basically freak occurrences – are far more common than terrorism.

In one example of the VIPR teams in action, agents screened people who had just gotten off a train in Savannah, Georgia. This incident was only publicized because this video was posted of TSA agents searching the passengers (including a 9-year-old), ordering them around, etc., just like in an airport. The TSA later issued a partial apology, acknowledging that the screening did not make sense – but only because no more trains were leaving the station. It did not admit the fundamentally misguided nature of the program itself.

Americans need to be strong and not give away their privacy and freedom to government security agencies. The fact is, if we keep trading away our freedom bit by bit in exchange for false promises of safety every time a new threat appears, we will end up living in a country we won’t recognize and won’t much like.

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