Revisiting “Special Needs” Theory via Airport Searches

Reinert, Alexander A. | July 1, 2012

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers’ bodies, and “enhanced” pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s as a response to politically motivated “skyjacking,” it too was challenged in court. In the 1970s, courts often relied on the then- novel “special needs” exception to uphold the FAA’s search regime despite the tensions it created in the doctrine. Although courts today will likely rely on similar reasoning to uphold the TSA’s new screening methods, I argue in this Essay that the TSA’s new search regime is more difficult to square with fundamental Fourth Amendment principles. Therefore, it is even more important that new doctrinal limitations on the ever-broadening special needs exception accompany any judicial acceptance of the TSA’s search regime. As much as possible, judicial approval of the new search program should be limited to its justifying purpose—safe air travel. Providing such limited approval would have evidentiary implications that I explore in this Essay. Seen in this light, the TSA’s new search regime offers an opportunity to revise and revisit special needs jurisprudence to minimize the risk that the exception will ultimately swallow the Fourth Amendment’s traditional preference for searches based on warrants and individualized suspicion.