This weekend, The New York Times reported that the Transportation Security Administration’s “behavioral detection” program at Logan Airport has devolved into a racial profiling program, according to complaints from 32 federal officers who’ve seen up-close how it works. And yet to my eye, racial profiling isn’t the only constitutionally problematic aspect of the program revealed in the article (emphasis mine below):
In interviews and internal complaints, officers from the Transportation Security Administration’s “behavior detection” program at Logan International Airport in Boston asserted that passengers who fit certain profiles — Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward — are much more likely to be stopped, searched and questioned for “suspicious” behavior.
“They just pull aside anyone who they don’t like the way they look — if they are black and have expensive clothes or jewelry, or if they are Hispanic,” said one white officer, who along with four others spoke with The New York Times on the condition of anonymity. […]
At a meeting last month with T.S.A. officials, officers at Logan provided written complaints about profiling from 32 officers, some of whom wrote anonymously. Officers said managers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems.
Since everyone seems to be in agreement that the alleged profiling at the focus of the story is grossly unacceptable, I want to focus on what appears to have given rise to it: Managerial pressure to use TSA screenings as a means of enforcing drug laws and other ordinary criminal statutes, apparently resulting in a system of de facto quotas for “criminal referrals.” Even if this goal were being pursued without the use of racial profiling, it would be problematic, because the constitutionality of TSA searches is premised on the idea that they are not conducted for ordinary law enforcement purposes. We now seem to take for granted that narcotics interdiction is a legitimate aim of warrantless TSA searches—even on domestic flights not subject to the Fourth Amendment’s “border search” exception—but if we hew closely to the legal rationale for these searches, it’s not at all clear that ought to be the case.
Thanks to the Fourth Amendment, government agents cannot normally demand that we submit to intrusive, suspicionless searches as a condition of exercising our right to travel. In one 2000 case, the Supreme Court held that a police officer had violated the rights of a bus passenger by merely squeezing the outside of his carry-on bag, never mind conducting one of the “enhanced” pat-downs for which TSA has become infamous. The legal rationale for making an exception for airlines can be traced to a string of cases from the early 1970s, in which courts developed a “special needs” doctrine, largely in response to a string of high-profile plane hijackings in the 60s, creating an exemption from the Fourth Amendment’s warrant requirement under certain circumstances. Once crucial test was that such warrantless “special needs” searches had to be conducted for the purpose of protecting public safety, not simply for carrying out ordinary criminal investigations or law enforcement functions.