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Constitutional Law

New Airport ‘Sex Assault’ Search Sparks Pilot Suit and Passenger Civil Disobedience Campaign

Posted Nov 17, 2010 11:52 AM CDT
By Martha Neil

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A recording of a man refusing what the Transportation Security Administration refers to as a "standard pat down" search at the San Diego airport over the weekend and what he calls a "sexual assault" has gone viral, adding additional impetus to a grassroots movement urging passengers to refuse new x-ray scans to which many also object on the busy travel day before Thanksgiving.

In the recording, which is linked to a CNN Travel blog post about the incident, software engineer John Tyner initially agrees to the search as it is explained to him in advance, step by step. But then, mimicking the style of the TSA agent, he tells the man "If you touch my junk, I'm gonna have you arrested. Okay?"

A discussion then ensues with the agent's supervisor, all of which Tyner recorded on his cell phone:

"Okay. I don't understand how a sexual assault can be made a condition of my flying," he tells her at one point.

"This is not considered a sexual assault," she states.

"It would be if you were not the government," he replies.

"This is considered an administrative search and we are authorized to do it," she says.

Such searches, which are part of a new airport security initiative, are ordinarily conducted only when passengers refuse to go through x-ray scanning machines to which many also object, because they, in effect, create nude images of the scanned individuals. (Some have also expressed concern about potential stored images.)

But in a hearing yesterday before the Senate Committee on Homeland Security and Governmental Affairs, the head of the TSA told lawmakers that airline passengers have a choice: They can go through the machine scan, accept a pat-down search or go home instead of getting on a plane, reports the Washington Post.

Meanwhile, pilots and flight attendants also aren't keen on the pat-downs, nor are they eager to go through the scans multiple times daily, citing a potential risk from accumulated low-dose radiation on such frequent occasions.

Two pilots who have put their jobs at risk by refusing both the scans and the pat-down searches sued the TSA and the Department of Homeland Security yesterday in federal court in Washington, D.C., contending that the searches are unconstitutional under the Fourth Amendment, reports the Commercial Appeal.

A national "opt-out" day is being promoted, on Nov. 24, as an opportunity for those who wish to make their objections known to refuse the machine scan and ask for the "pat down" search instead--in public, rather than the private room that is provided, explains a web page about the event.

"We want families to sit around the dinner table, eating turkey, talking about their experience--what constitutes an unreasonable search, how forceful of a pat down will we allow on certain areas of our body, and that of our children, and how much privacy are we will to give up for flying? We hope the experience then propels people to write their Member of Congress and the airlines to demand change."

The Tyner incident may not be over either: Officials at at the TSA have opened an investigation into the incident and suggested that he could be hit with a civil penalty of as much as $11,000 for refusing the search, if he pre-planned the incident, reports NBC San Diego.

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