Touched by an agent: why the United States should look to the rest of the world for a new airport security scheme and stop using full-body scanners.

• Author: Taylor, Courteney L.

1. INTRODUCTION II. THE UNITED STATES: THE PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES AND THE UN-ENUMERATED RIGHT TO PRIVACY (WHATEVER THAT MAY MEAN) A. What Are the Rights of United States Citizens? B. If Every Person in the United States Has Both a Right to Privacy and a Right Against Unreasonable Searches and Seizures, How Does the Government Get Around Those Rights? III. THE UNITED STATES' AIRPORT SECURITY MODEL: INNOVATION, TECHNOLOGY AND PRACTICALLY A COMPLETE RELIANCE ON MACHINES A. What Do These Kinds of Machines Do Exactly? B. To Put it Nicely, Airline Passengers Detest Full-Body Scanners and the Possible Problems They Create IV. THE UNITED NATIONS' UNIVERSAL DECLARATION OF HUMAN RIGHTS: INTERNATIONALLY RECOGNIZED RIGHTS TO PRIVACY AND AGAINST UNREASONABLE SEARCHES AND SEIZURES V. AUSTRALIA'S AIRPORT SECURITY MODEL: FOLLOWING IN BOTH THE UNITED STATES AND ISRAEL'S FOOTSTEPS VI. NIGERIA'S AIRPORT SECURITY MODEL: NO MODEL AT ALL VII. ISRAEL'S AIRPORT SECURITY MODEL: PERSONAL INTERACTION AND GROUP PROFILING A. Israel's Largest International Airport: What Security Methods Are Being Used in Ben Gurion International Airport? B. A Day in the Life of a Ben Gurion Passenger VIII. MEASURES THE UNITED STATES SHOULD EMPLOY IN AIRPORTS IN ORDER TO BETTER PROTECT ITS CITIZENS A. The United States Should be Relying Partially on Technological Advancements in Airport Security and Partially on Personal Interaction with Passengers B. Innovative Security Tactics at Boston's Logan International Airport: Footsteps the United States Should Follow In C. Will Implementing a More Israeli-Like Security System be Effective in the United States? D. Even if Implementing Israel's Airport Security System in America Could be Efficient, Could the Country Ever Afford it? E. If the United States Refuses to Tax Passengers and Refuses to Re-Allocate Funds Towards Implementing an Israeli-Like Airport Security System, What Alternatives are There? IX. CONCLUSION I. INTRODUCTION

   After the tragic events of September 11, 2001, the issues of airport security and terrorism prevention have become some of the most talked about topics of the last twelve years, (1) and with good reason. The attacks America faced all those years ago required quick action in order to better protect citizens worldwide. (2) Countries all over the world have since been trying to beef up security in order to protect their citizens while at the same time trying to keep in mind the protection of the rights of those very citizens. (3) Because most of the technology currently used in airports is brand new, and because what rights citizens may or may not have is usually a very blurry area, (4) the balance between protecting citizens and assuring that their countries are not intruding on their rights is not always easy to strike. (5)

   This Comment examines the methods countries across the globe are utilizing in airports, and ultimately, suggests what the United States could be and should be doing. This Comment has six parts. First, it analyzes the United States laws against unreasonable searches and seizures and the United States right to privacy, followed by a discussion of the current measures the United States employs for airport security. A brief discussion of the United Nations' stance on the right to privacy follows. Then the separate rights of privacy, as well as the separate methods of airport security, that exist in Australia, Nigeria and Israel are analyzed. Finally, this Comment proposes a solution to the United States' security issues based on which measures do and do not work in airports throughout the globe.

   This Comment argues that while the United States is at the forefront of technology in terms of airport security, the country lacks in one major area: personal interaction. This Comment argues that the implementation of simple personal interaction aspects in the United States' airport security model will help cut down on terrorism, just as personal interaction in Israel's Ben Gurion International Airport has reduced terrorist threats in Israel. (6) This Comment addresses concerns that exist in regard to implementing a system of personal interaction, such as concerns over effectiveness and efficiency and budgetary constraints. Finally, this Comment will provide alternative measures the United States could put into action in order to move further away from relying solely on technological advancements.

2. THE UNITED STATES: THE PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES AND THE UN-ENUMERATED RIGHT TO PRIVACY (WHATEVER THAT MAY MEAN)

   Before an analysis of the methods the United States uses in its airports can be conducted, it is first imperative to look at United States citizens' rights because these rights provide the basis for the ways the United States' airports are conducting security. There are two rights, working together, that are important to a discussion of airport security: (a) the right against unreasonable searches and seizures, and (b) the right to privacy. (7)

   1. What Are the Rights of United States Citizens?

      The Fourth Amendment to the United States Constitution protects those in the United States against unreasonable searches and seizures. (8) With a few exceptions, the Constitution provides that a Government actor searching a person must obtain a warrant based on probable cause. (9) Probable cause is defined as a "reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime." (10)

      The right to privacy complements the right against unreasonable searches and seizures. (11) The United States Supreme Court has recognized the right to privacy as one of the un-enumerated rights that exists in the due process clause of the Fifth and Fourteenth Amendments. (12) The right to privacy is defined as the right to be free of unsanctioned intrusion. (13)

   2. If Every Person in the United States Has Both a Right to Privacy and a Right Against Unreasonable Searches and Seizures, How Does the Government Get Around Those Rights?

      If the United States recognizes both a right to privacy and a right against unreasonable searches and seizures, how is it that in airports across this country, the rights seem to vanish as airport security personnel take photographs of passengers' naked bodies, conduct aggressive pat-downs, and dig through their baggage?

      Perhaps the most astounding part about those rights American citizens supposedly have is the ways the United States has come up with to get around these requirements in the name of airport security. (14)

      A "special needs" exception to the right against unreasonable searches and seizures has been found to exist by the United States Supreme Court in the context of drunk driving checkpoints. (15) Applied in airport checkpoints, this exception balances the state's interest in conducting the seizure, the effectiveness of checkpoints, and the level of intrusion on a person's individual privacy. (16) It is this exception that allows searches to be conducted in airports without probable cause and without the need to have any warrants issued. (17) The only requirement for a search to be conducted under the special needs exception is that the search must be reasonable. (18) However, the truth remains that people entering airports have the right to decide not to board an airplane, and therefore, those who refuse to board will not be subjected to a passenger screening or search. (19) The United States Constitution may say that a warrant and probable cause should be requirements in order for citizens to be searched and seized, but the special needs exception neatly sidesteps that requirement. (20)

      One other way around the right against unreasonable searches and seizures is to gain consent from the passenger. (21) Passengers have "the choice, as a matter of constitutional law, to submit to ... search[ing] ... as a condition to boarding an airplane, or to leave[,]" and this choice can be "seen as either a decision to give up the right to leave or a decision to submit to the search." (22) No matter how one views that choice, "the choice is seen as consent." (23)

      In terms of the right to privacy, many argue that the use of full-body scanners in airports, which are considered legal, violates the right to privacy. (24) It would naturally seem to most people that allowing airport security officers to see photographs of passengers' naked bodies is a violation of those people's privacy. (25) Privacy is further breached when photographs of passengers' naked bodies, which airport officials have assured us will remain safe from the public eye, end up plastered across the Internet. (26)

      While a right to privacy and a right against unreasonable searches and seizures both exist in the United States, these rights are abridged in the name of airport security. (27) Full-body scans, pat-downs, and bag searches are all being conducted in airports, while the Supreme Court has yet to deal with the issue of whether the use of these machines is reasonable. (28)

3. THE UNITED STATES' AIRPORT SECURITY MODEL: INNOVATION, TECHNOLOGY AND PRACTICALLY A COMPLETE RELIANCE ON MACHINES

   Since the 1970s, when the X-ray machine made its first debut in the field of airport security, (29) United States citizens, as well as citizens worldwide, have associated the United States' airport security with astounding technological advancements. (30) While many changes have occurred in United States airports over the years, one thing that may always remain true is that the United States is constantly finding new ways to use technology to provide what seems like better security for passengers. (31)

   Today the United States relies almost entirely on electronic methods of detecting threats to national security. (32) Not only does the United States use tried-and-true methods of security such as metal detectors and X-ray scanners, (33) but also uses innovative technological...