TSA - AMERICAS GESTAPO: THE STATE OF THE LAW & WHAT NEEDS TO BE DONE TO STOP TYRANNY

BY: JAIME

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1 CHARACTERIZATION OF THE COMPLAINTS ........................................................................4 SPREAD OF THE TSA OUTSIDE AIRPORTS ............................................................................5 THE TSA VS. BILL OF RIGHTS ...................................................................................................6 ATTEMPTS TO SUE THE TSA .....................................................................................................8 SUING THE TSA IN 2012 ............................................................................................................11 TSAs NATIONAL SECURITY DIRECTIVES VS. INDIVIDUAL RIGHTS ...........................12 CURRENT FOURTH AMENDMENT LEGAL APPROACHES ................................................13 A PHILOSOPHICAL APPROACH TO THE TSA ......................................................................16 IMPLICATIONS OF A STRONG FOURTH AMENDMENT IN THE BROADER CONTEXT OF NATIONAL SECURITY ............................................................................................27 A BRIEF COMMENT ON THE EXTENT OF PRIVITIZATION FOR NATIONAL SECURITY ........................................................................................................................30 THE FUTURE OF PRIVACY UNDER NATIONAL SECURITY DIRECTIVES: MY PREDICTION ............................................................................................................32

TSA - AMERICAS GESTAPO:

THE STATE OF THE LAW & WHAT NEEDS TO BE DONE TO STOP TYRANNY INTRODUCTION The Transportation Security Administration has been operating in America for over 10 years now. n1 Since its inception, the TSA has grown significantly, performing screenings for 640 million domestic and international aviation passengers in the United States annually. n2 Public ire with the TSAs practices has surged as the TSA has expanded, with criticism arising even in comedic television satire. n3 Citizens have filed complaints and fought legal battles to rein in the TSA. n4 As the cases have closed, it is still anyones guess if the complaints can be resolved. This paper discusses the TSA pressing privacy issues from a legal and philosophical standpoint, ultimately offering a new approach to Fourth Amendment rights in the context of national security concerns for American citizens. HISTORY & BACKGROUND The Department of Homeland Security (DHS) and the Transportation Security Administration (TSA) were legislative responses to the attacks on 9/11 to provide domestic national security. n5 The TSA was created in 2001 by Congress and was merged with the Department of Homeland Security in 2003 post passage of the Homeland Security Act. n6 The TSA had originally been part of the Department of Transportation. n7 The DHS has taken over the function of 22 federal departments, employing 216,000 workers with an operating budget of $56,983,449,000 in 2012. n8 Some of the subsidiary programs include the Federal Emergency Management Agency (FEMA), the U.S. Coast Guard (USCG), and the U.S. Immigration and Customs Enforcement (ICE). n9 Of the total budget, the TSA received 14 percent, approximately $8 billion, for fiscal-year 2012. n10

The TSA is charged with screening airports, but its job also includes other areas such as rail, transit and pipeline sectors. n11 The TSA acts nationwide. n12 There are some 50,000 officers screening more than 1.7 million passengers at over 450 airports daily. n13 The TSA uses a variety of tactics to search for dangerous activities, including some 500 imaging technology machines (millimeter wave; backscatter x-ray) to detect prohibited, illegal or dangerous items. n14 The backscatter x-ray machines are the most infamous along with the enhanced pat-down procedure. n15 The backscatter machine has the ability to form a digital contour of the human body by emitting radiation while the subjects arms and legs are spread apart. n16 The purpose is to detect prohibited items which may be used for terrorism. n17 The contour image can be rather revealing, showing the graphic outlines of genitals, breasts, and evidence of other discreet objects and procedures. n18 Marc Rotenberg, president of the Electronic Privacy Information Center (EPIC) and teacher of privacy law at the Georgetown University Law Center, has described the backscatter machine as a form of voyeurism, a practice otherwise considered criminal under the Video Voyeurism Prevention Act. n19 The TSA has responded to passenger concerns by upgrading scanning software to include more privacy features. n20 The upgrades include a model outline screen so that the actual scan is not shown to the TSA agent. n21 The screen instead directs visual alerts to problem areas on the determinate person. n22 The TSA states that the upgraded machines do not store the scans but delete them immediately. n23 However, these upgrades have not yet been added to every location. n24 Even with the upgrades, privacy advocates are still concerned about the machines ability to store the graphic images depicting passengers intimate parts. n25 Privacy advocates state that the storage procedure cannot be confirmed as the Department of Homeland Security has

continued to keep things secret under the blanket of national security. n26 They also note that the machines are supposedly capable of storing images in their initial phases for "testing, training, and evaluation purposes." n27 Without more disclosure, it is difficult for the public to evaluate the machines full impact on privacy. There is also concern that the x-ray machines put out too much radiation, which is especially risky for the young, the elderly, and pregnant women. n28 John Sedat, a professor emeritus in biochemistry and biophysics at UCSF, sent a letter to White House Science Advisor John Holdren expressing his concerns about the TSA machines. n29 The professor, along with some of his colleagues, complained that the TSAs reports are heavily redacted and unverifiable. n30 He also stated that the reports may only be based on model versions of the backscatter machines, not the ones actually rolled out in airports. n31 Such concern may be warranted. The TSA admitted some of its machines were accidentally calibrated 10 times above the permitted amount of radiation in March of 2011. n32 The TSA said it would retest every full-body X-ray scanner that emits ionizing radiation which included 247 machines at 38 airports at the time. n33 The error stemmed from a failure by technicians to make a final calculation in the calibration - dividing by 10. n34 The ability for the public to confirm the new radiation levels is difficult because of national security exemptions to disclosure. n35 The pat-down procedures are also kept secret under national security. n36 Unlike the publics ability to test the x-ray machines, the pat-down can be studied as travelers take videos, pictures, and blog on their experiences. n37 The procedure has been generally described as a running of the fingers and palms along the breast and groin areas, and moving up and down the legs and arms until the TSA agent meets resistance. n38

The TSA has other potentially invasive technology in use, including chemical detection and visual cue technology. Chemical detection, typically a swab on clothes, baggage or hands, has been ongoing along with imaging machines and pat-downs. n39 The visual cue technology, called the Future Attribute Screening Technology (FAST), uses computers to analyze the demeanor of subjects, judging malicious intent. n40 FAST is still in testing phases but is anticipated for use in the near future. n41 CHARACTERIZATION OF THE COMPLAINTS Ever since the TSA started screening and patting down passengers, the public has shown outrage at the practices, reporting it as abuse to the mainstream media and the White House. n42 The outcry may be so strong because no demographic has been left untouched. The TSA has been seen frisking with fingertips inside a 6-year-old-girls waistband and strip-searching the elderly. n43 Babies, teenagers, and adults have all been subject to touching under the banner of national security. n44 The complaints against the TSA are not limited to sexual assault and violation of the Fourth Amendment, as have been commonly alleged. n45 Travelers are also complaining about increased theft and damaged property, which leads to greater distrust of the TSA workers. n46 Some politicians have gone through the TSAs procedures to their chagrin. Sharon Cissna of the Alaska state legislature and Rand Paul of the U.S. Senate have voiced their privacy concerns after experiencing the TSAs pat-downs. n47 Even the former Indian president, APJ Abdul Kalam, has complained about the TSA after being frisked multiples times on a New York trip. n48 SPREAD OF THE TSA OUTSIDE AIRPORTS

The TSA has expanded quickly beyond airport security. n49 It has been operating in major public venues and areas of transportation with specialized, Visible Intermodal Prevention and Response (VIPR) teams. n50 The VIPR teams are [c]omprised of federal air marshals, surface transportation security inspectors, transportation security officers, behavior detection officers and explosives detection canine teams. n51 They have augmented security at key transportation facilities in urban areas around the country, including New York City, Buffalo and Syracuse, N.Y., Los Angeles, Boston and Providence, R.I. n52 The VIPR program was authorized by 6 U.S.C. 1112 to augment the security of any mode of transportation at any location within the United States as a response to the Madrid train bombings. n53 In 2011 alone, they conducted some 9,300 checkpoints and other searches. n54 The TSAs presence can be felt across America. In September, 2008, Amtrak Office of Security Strategy and Special Operations (OSSSO), Amtrak Police, Transportation Security Administration (TSA) personnel and officers from approximately 100 commuter rail, state, and local police agencies mobilized...for the largest joint, simultaneous Northeast rail security operation of its kind, involving 150 railway stations between Fredericksburg, Virginia, and Essex Junction, Vermont. n55 In October, 2009, TSA screened nearly 700 travelers at the Greyhound bus terminal near downtown Orlando. n56 Some 50 officials from agencies including TSA, Orlando police, the Orange County Sheriff's Office, and U.S. Customs and Border Protection patted down passengers. n57 In May, 2011, TSA agents were told to be present at the Santa Fe High School prom in New Mexico, patting-down students to search for prohibited items as authorized by a federal court. n58 This came after two female students from another nearby school complained about

privacy violations when a private security company pat down the females breasts and thighs on their way to prom. n59 Although TSA presence was court-ordered, the state police ended up taking over the task with the courts permission, conducting the pat-downs themselves instead of the TSA. n60 In late 2011, Tennessee became the first state to use the TSA for random highway searches, setting up at five weigh stations and two bus terminals. n61 The use of the TSA on the roads continued in Florida, where the DHS pulled over random vehicles entering SarasotaBradenton International Airport Wednesday as part of an exercise. n62 THE TSA VS. BILL OF RIGHTS The Fourth Amendment protects the privacy of citizens against unreasonable and unrestrained intrusion by Government officials and their agents. n63 In addition, Americans enjoy an implicit right to privacy and an implicit right to interstate travel. n64 All of these rights could be implicated when the TSA stops, searches and potentially inhibits persons from flying state to state through lengthy screening processes and detentions, leading to missed flights. n65 So the question then lies, How does the TSA get around these Constitutional hurdles? The TSA has been able to overcome these fundamental rights thus far by relying on an administrative exception to searches and seizures for national security purposes. n66 The TSA cites United States v. Davis, 482 F.2d 893 (9th Cir. Cal. 1973) on its Website as a justification for its screening practices. n67 Under Davis, the Ninth Circuit ruled that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched. n68 The court defined the airport screening procedures as

administrative, thus crafting a new reasonableness standard with which to apply the searches. n69 The court held that an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. n70 In the TSAs case, preventing terrorism is the administrative need. n71 The court in Davis was deferential to fundamental rights, and emphasized that the government had the burden to demonstrate consent to search with a policy of allowing passengers to revoke consent and end screening. n72 However, the Ninth Circuit has since moved away from that framework, and now gives administrative searching schemes broad powers. n73 In a recantation, the Ninth Circuit stated that their case law was erroneous, wrongly relying on consent as a basis. n74 The idea that a flyer could revoke or end consent was considered unworkable by the court in a post-9/11 world, where terrorists can refuse to fly until they find a vulnerable port. n75 The Ninth Circuit has continued ruling on this method. n76 While the court still gives a nod to the Fourth Amendment, they have made it clear that blanket suspicionless searches calibrated to a risk may rank as reasonable. n77 The current calibrated risk is largely the risk of weapons or explosives brought to hijack flights. n78 The court also has approved TSA workers taking notice of other contraband in the process: As long as (1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher's actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search, the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis. n79 With this rationale, it appears the TSAs actions will maintain great deference so long as it follows administrative procedure.

ATTEMPTS TO SUE THE TSA There have been several attempts to bring down the TSAs invasive procedures, specifically, the body imaging technology and the pat-downs. Plaintiffs have included older women, young men, and even a former governor. The courts have thus far been reluctant to take the cases and typically dismiss on lack of jurisdiction. n80 Plaintiff Wendy S. Thomson was one of the first in a line of cases to sue the Department of Homeland Security and the TSA for Fourth Amendment violations. n81 Ms. Thomson was especially irked with the TSA because she had a full-suction socket prosthesis with a sealedfoam cosmetic covering. n82 This medical condition lead to multiple, prolonged searches by the TSA on her business flights. n83 Ms. Thomson complained about the searches, saying they humiliated her because the procedure included a full-torso pat-down with her breasts extensively touched. n84 She also mentioned occasional testing for explosives on her left leg, which was not the prosthetic leg. n85. Ms. Thomsons complaint summarily concluded that "exercising mandatory hand and upper-body pat-downs for explosives based upon a lower extremity alarm amounts to the 'flying while handicapped' equivalent to 'driving while black', and as such unconstitutionally amounts to profiling." n86 The court proceeded through a few technical issues (largely due to pro se aspects), but settled on the theory that the court lacked jurisdiction to handle the matter per 49 U.S.C. 46110. n87 The court emphasized the relevant portion: [A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security or the Administrator of the Federal Aviation Administration ) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for

review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. When the petition is sent to the Secretary, Under Secretary, or Administrator, the court [of appeals] has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings. 49 U.S.C. 46110(a), (c) (2005). n88 The court emphasized that claims inescapably intertwined with Department of Homeland Security procedure, here the TSA administrative policy, are issues solely placed with court of appeals jurisdiction. n89 In other words, a direct file to an appellate court is required instead of starting at the trial court level. n90 This jurisdictional issue has continued to hound plaintiffs . After Thomson, two pilots sued the TSA, stating that their Standard Operating Procedures (SOP) violated their Fourth Amendment right to be free from unreasonable searches and seizures. n91 The court held again that it was out of the lower tribunals jurisdiction, alluding to 49 U.S.C. 46110 and a series of other holdings using the same inescapably intertwined rationale. n92 Even though the lower federal courts have largely booted out suits against the TSA on jurisdiction, one district court in Virginia entertained lawsuits against TSA officers in their individual capacity. n93 The events arose when Aaron Tobeya student pursuing a degree in architecture, was waiting in line to pass through screening at Richmond International Airport on December 30, 2010. n94 Upon approaching the screening area, Mr. Tobey took off his shirt to

reveal the Fourth Amendments text written upon his chest as a protest against the TSA procedures. n95 After successfully going through the machine, he was handcuffed, interrogated for 90 minutes, and arrested for disorderly conduct, a first-degree misdemeanor. n96 The charges were eventually dropped and Mr. Tobey sued the TSA with the help of the Rutherford Institute, a civil-liberties firm. n97 In August of 2011, United States District Court for the Eastern District of Virginia published an opinion regarding the motions to dismiss from the Federal government and the Capital Region Airport Commission. n98 The court denied relief against the TSA supervisory officials and the Capital Region Airport Commission as an entity, but allowed for suits against the police officers in their individual capacity. n99 The court stated that the plaintiffs failed to show any plan, policy or procedure which violated the First, Fourth or Fifth Amendments as is required to show in a suit against federal officers, and that a 42 U.S.C. 1983 civil rights suit doesnt apply to federal action without state conspiracy. n100 The only item left on the table was possibly to sue the officers for arrest without probable cause, a violation of the Fourth Amendment, using a 42 U.S.C. 1983 claim for a violation of rights under the color of state law. n101 This could only come after a factual finding to determine if the officers met qualified immunity protection, so the case had to await further discovery. n102 A small victory, but nonetheless, no grounds were gained in the Constitutional fight against the TSA itself. There is another recent case against the TSA worth mentioning because of the plaintiffs notoriety. Jesse Ventura, former governor of Minnesota, actor and ex-Navy Seal, filed suit against the TSA in late 2011. n103 Mr. Ventura, like Ms. Thompson, has a medical condition (a titanium hip) which leads to his being flagged for pat-downs more often. n104 Beyond the usual Fourth Amendment complaints, Mr. Venturas attorney tried arguing procedure, stating that the

TSAs operations were not an administrative order for purposes of enforcing 42 U.S.C. 46110, which would mean a lower tribunal could hear the case. n105 The court disagreed, stating that the TSAs procedures were an administrative order, meeting the requirements that an order be (1) final, (2) contemplate immediate compliance, (3) [be] public, and (4) [be] based on an administrative record that permits meaningful appellate review. n106 The court also rejected jurisdiction on 28 U.S.C. 1331 and 1346, stating that there were no other authorities dealing with the TSA under those statutes, so the jurisprudence on 42 U.S.C. 46110 should be applied. n107 The rejection by the court lead Mr. Ventura to anger, stating publicly I have lost my patriotism[i]t is gone, because theyve stripped me of it by not allowing me to have my day in court. n108 SUING THE TSA IN 2012 Given the current climate in the courts, it appears that the only way to sue the TSA in an official capacity is to make a direct case to a court of Federal Appeals under 42 U.S.C. 46110 in a court where one has his or her residence or principle place of business. n109 This could potentially could be more time-consuming and expensive than the trial court experience. Attorney Bill Rounds, author of www.howtovanish.com, suggests playing the game by suing TSA agents in an individual capacity as a way to fight abuses at the pawn level instead of trying to take down the Queen. n110 Given the concerns about genitals being touched and the vulnerable being exploited, he suggests the suits may deter excessive pat-downs until a decent lawsuit can reach the appellate level. n111 Harvard law graduate Dr. Edwin Vieira, author of Constitutional Homeland Security, has suggested that the TSA should be attacked from the Constitutional perspective of travel. n112 He writes, The Supreme Court has long enforced the general rule that officials may not

Constitutionally condition the grant of any benefit to a particular individual on a requirement that would be unconstitutional if imposed promiscuously on the general public. n113 Dr. Vieira believes this rationale may be a key way to declare the TSA unconstitutional because the procedures could not be generally used in the street. n114 Whatever tactics are implemented, it is apparent from case history that the courts are not easily swayed by arguments that the TSA is acting unconstitutionally. Whoever sues next will have to find ways to specifically articulate how promulgated policy, procedure and practice of the TSA is violative of the Constitution, either on its face or as applied. Anything short of throwing the book will likely be a waste of time. This author would also recommend trying to get legislation passed in states restricting the TSA as the Texas legislature tried to do in 2011. n115 It may be better to get bills passed criminalizing TSA conduct than to vie for a favorable court ruling because the Ninth Circuit is not likely to overturn itself and any other appellate court which rules against the Ninth may cause the controversy to get to the Supreme Court. Whether or not the Supreme Court rules favorably is uncertain, but, if states are criminalizing TSA conduct, a Tenth Amendment claim may be also raised when a decent case comes down the pipe. n116 THE TSAs NATIONAL SECURITY DIRECTIVES VS. INDIVIDUAL RIGHTS The practices of the TSA should be analyzed in terms of Mores, what current Constitutional norms are, and Ethos, what they ought to be. The mainstream Constitutional counter to the TSAs practices will be discussed from the bent of two law review articles: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT IMPLICATIONS OF "BODYSCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY CHECKPOINTS, by Tobias W.

Mock, n117 and The Fourth Amendment Implication of Full-Body Scanners in Preflight Screening, by M. Madison Taylor. n118 How the Fourth Amendment ought to be approached will be crafted from two perspectives. A discussion of Liberal Security, written by Florida State Law professor Fernando Tesn, will relay an ideal from a national security focus. n119 A rights-focused philosophy on the TSA and national security will be founded on late economist and philosopher Murray Rothbard in his masterpiece work, The Ethics of Liberty. n120 Both discussions will attempt to strike a balance between national security and individual autonomy. CURRENT FOURTH AMENDMENT LEGAL APPROACHES Mock and Taylor both address the full-body scanner issues from a Fourth Amendment perspective, emphasizing that while national security interests are at stake in preventing terrorism, the Fourth Amendment rights of otherwise innocent passengers cannot be abated when such a great privacy intrusion is pushed en masse. n121 Taylor frames the problem excellently, stating, What happens to the images after they are taken is merely symptomatic of the actual intrusion: the scan producing the images. n122 The fact that the scanners are revealing intimate details about a persons body is a privacy intrusion. n123 Even more clear as to intrusiveness are the pat-downs, which, as both Taylor and Mock compare, resemble Terry frisks, normally carried out in the context of detentions where officers reasonably believe a crime is afoot and the suspect is armed. n124 Mock takes note that many travelers continue to describe the pat-downs as invasive and humiliating, which comes as no surprise when government officials are rubbing in-between breasts and legs as part of the procedure. n125

Both Mock and Taylor also attack the effectiveness of the TSA, suggesting that the national security benefits do not outweigh Constitutional rights. n126 Taylor mentions British intelligence on the matter, which states certain chemical bombs could still make it through like the December 25, 2009, attempt on Northwest Airlines Flight 253. n127 Mock points out that TSA agents have to discern between threatening and non-threatening objects through the outside of clothing, sometimes using just the back of the hand in sensitive areas. n128 This search limitation calls into question whether the TSA can actually determine threatening objects in intimate areas, especially if the new scanner safety features keep TSA workers from viewing the actual scan. n129 A terrorist can thus subvert current TSA procedures by using explosive breast implants or other prosthetics. n130 Mock and Taylor agree that backscatter x-rays ought to be more heavily scrutinized than traditional magnetometers because of their intrusiveness. n131 Where they differ is at what point backscatter x-rays should be used in the context of the Fourth Amendment. Mock argues that body-scanning devices are Constitutional if used as a secondary device. n132 He states that body-scan searches are more effective than pat-downs because they can detect hidden items and are not limited in scope as they encompass the whole body. n133 Therefore, used as a secondary search, the process may be more akin to Terry stops where reasonable suspicion is already aroused. n134 Taylor is more stringent. He puts emphasis on the need for individualized suspicion independent of any other test or screening. n135 Taylor sees the TSA operating under a complete ad hoc basis, which offers the TSA a virtual Fourth Amendment exemption. n136 To bring the TSA under traditional Fourth Amendment understanding, he suggests a probable cause standard that would normally be demanded of citizens for a strip-search incident to arrest.

n137 Taylor states, courts should require TSOs to exhaust less intrusive screening methods before resorting to a full-body scan. This exhaustion, combined with independent justification, is necessary to ensure that meeting the threat is consistent with a least intrusive means Constitutional policy. n139 While both Mock and Taylor make great arguments for restoring the Fourth Amendment to flying, it will be difficult to apply their analyses because of how deeply entrenched administrative searches have become for national security. n140 Courts are likely to continue to rely on the administrative exception because the TSA was statutorily enacted for the purpose of fighting terrorism, which is seen as a compelling government interest. n141 The Ninth circuit has held that an airport search remains a valid administrative search only so long as the scope of the administrative search exception is not exceeded[.] n142 So, if the scope of the search is for any explosive, and that search can include explosives stored in intimate areas, the TSA is not going to be easily stopped on Fourth Amendment grounds alone. n143 There is already clear evidence that the courts will broadly construe permissible searches. n144 For example, searches for explosive paper is a grounds to search as it may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs." n145 With this type of rationale, there appears to be no scope of search grounds left for a Fourth Amendment argument because the courts already envision a broad scope exception within the Fourth Amendment. If anyone wants a court to strike down the bunker of TSA policies with a Fourth Amendment attack, he or she will have to fight against a deep entrenchment of exceptions. n146 More importantly, the emotional sway of fighting terrorism combined with the government parading terrorist acts as justification for intrusion, makes the courts reluctant to strike down the

TSAs practices. n147 Something more than modern Fourth Amendment jurisprudence is needed for a wholesale take-down of the TSA in the courts. Mocks suggestion to turn backscatter x-rays and pat-downs into secondary searches is the most convincing on Fourth Amendment grounds because a total injunction would force the Ninth Circuit to reverse its own reversal on the consent and reasonableness issues. n148 Other courts may still rebut the suggestion, charging that the TSA is not sworn law enforcement and thus should not be scrutinized under the Fourth Amendment as police are. n149 Hopefully, the courts will not take this route because of its policy implication that the government can broadly create entities not bound by the Constitution simply by labeling them administrative. However, as the legal field stands, it would not be a surprise for the courts to refuse even a modest concession considering the word administrative is currently used to describe the searches. n150 A PHILOSOPHICAL APPROACH TO THE TSA The individual right to autonomy, as embodied in the Fourth Amendment, needs a fresh approach if there is to be a strong rule keeping government out of the pants of every American. The right to be free from unreasonable intrusion is already a motif of American jurisprudence, stemming in some part from Lockes Two Treatises on Government and echoed in the Declaration of Independence. n151 That legal motif needs to be vigilantly fought for if liberty is to be preserved. To formulate an effective policy that protects individual liberty, a comparison will be made between an article on national security law and an article on general property rights. Commenting on national security in the context of human rights is Fernando Tesn, a leading scholar on National Security issues. Tesn believes that human rights and the rule of law ought

to be preserved in the face of security threats. n152 Professor Tesn presents the issue from a balancing approach, arguing that security threats, defined as actual or foreseeable acts of massive violence against the lives or liberties of citizens of a democratic state, may call for limiting certain rights to promote greater ones. n153 He argues that security measures must by justified under the concept of preserving American liberties. n154 His test follows: A security measure is justified if, and only if, the amount of freedom it restricts is necessary to preserve the total system of freedom threatened by internal or external enemies. n155 While the test he proposes is a theoretically rights-friendly formula, the actuality of what this means is unworkable in the real world. This test is unworkable because the balancing act can never be empirically metered out. The attacks on 9/11 and the response by the TSA are proof of this. As Professor Tesn notes, The attacks of September 11, 2001, against the United States posed a genuine physical and moral threat. n156 They were attacks conducted by principled evildoers against the people and the institutions of democracy. n157 These acts could thus qualify as reason to shift the balance of rights. So then, one may ask, What liberties could be systemically preserved by the implementation of national security measures? Here, the rights to be preserved are all related to security in persons and property, preventing death and other destruction. So how does the government balance its security measures when the calculus will be based on non-events - not dying or not having ones property blown to smithereens? The ultimate amount of perceived threats is always conjectural. Taking a look again at 9/11, The three World Trade Centers collapsing was an unparalleled event with unbelievable results as the towers were steel-trussed buildings built to withstand plane crashes. n158 The World Trade Center 7, not even hit by a plane, collapsed into

its own footprint with near free-fall speed possibly because of pocket fires. n159 Just like no one could have predicted the exact damage and death toll prior to 9/11, no one can predict exactly how much death and damage control government security measures are precisely providing. n160 Of course, the government can self-report, announcing what has been prevented and what the expected impact of such terrorist acts would have been, but that is simply relying on speculation. The government cannot know for certain whether its security measures were the only means to prevention or what the total harm would be had the acts been carried out, assuming a plot is thwarted. Even more complicated is private action. The governments position cannot calculate intervention at the hands of private persons, which could mitigate or entirely stop the terrorist acts. For example, Dutch filmmaker Jasper Schuringa was said to stop Umar Farouk Abdul Mutallab from carrying out the underwear bombing of Northwest Airlines Flight 253 in December, 2009. n161 Could Homeland Security calculate the effectiveness of such future interventions into the national security balancing act? Its a question that is not readily answered as it speculates about uncertain variables namely, who can prevent the acts, who is willing to prevent the acts, and what is the net result of private actions during the commission of a terrorist plot. Because of the ambiguity of private human action and other informational gaps in the end results measurement, the balancing equation begins with a virtually unknowable variable. Focusing back on the TSA as the governments security measure, when do the TSAs procedures come to an end if there is no end to terrorism, which has not a country or a fixed body? n162 Without a mission to accomplish like defeating the Nazis in World War II, all that is left is speculation as to who may attack, how many could possibly die or suffer property losses, and whether the attacks would increase or resurface if the security measures were to end.

It could be argued that specific terrorist groups can reach an ultimate end if all adherents are killed. However, the Department of Homeland Security has already expanded the definition terrorism beyond Middle-Eastern men in caves. n163 The DHS is not only looking to external threats like Al Qaeda, but also considers home-grown terrorism in the form of right-wing extremism, noting white supremacists, anti-abortionists, and even those against illegal immigration. n164 With such broad definitions, a true end to the governments security measures due to the threat of terrorism does not appear on the horizon. While the weight of terrorism in the moral balance between rights and national security has yet to be empirically measured, some have tried to empirically measure the losses suffered by passengers from the TSA screening process. In 2006, Tim Kern, a NBAA Certified Aviation Manager with an MBA from Northwestern University; suggested that the TSA is killing people one hour at a time. n165 In his thought experiment, Kern calculates the longer waits of the TSA to adduce that there are over 738 million hours lost each year from the TSA procedures if one averages one extra hour per flight per person. n166 This amount of time is the equivalent of 2,582 lives with an average life expectancy of 75 years. n167 He notes that the numbers could be drastically manipulated and still come to a significant loss of time, close to the lives lost on 9/11. n168 While this method is rather abstract, it is a way to quantify loss due to privacy intrusion. The calculation goes to show how extraordinarily difficult it is to apply a systematic balancing test so that national security and individual liberty can both advance. Beyond looking at physically quantifiable events, one must also engage in measuring moral gravity for human life lost. For example, what is the moral ratio of privacy intrusion to number of deaths? At what point does the amount of potential death justify the extent of a privacy intrusion? Professor Tesns test does not give a clear picture as to what one human

death caused by terrorism permits the government to do. His test and philosophy only describes the factors which allow the inquiry: 1. That there is a genuine security threat; 2. Posed by principled evildoers. n169 This is clearly not a black-and-white issue and, therefore, is subject to great abuse potential. That potential for abuse has already been realized as the governments intrusions have been increasing from the phone lines to the airports, and now to the streets. n170 The test is simply an untenable standard subject to the governments whims of perceived threats. The publics ability to monitor the government complicates the issue further. As it stands, the government can hide relevant information under various legal doctrines such as State Secrets Privilege or the Reynolds Privilege. n171 The TSAs procedures have already been wrapped tight under national security. n172 How can the public know if the government is truly advancing liberty interests as a whole if they can never know the exact toll on human rights or the amount of perceived threats? With the current legal framework in America, even if a way could be found to measure the impact of national security measures and privacy intrusions, that measurement may not ever be revealed in the public sphere. In his summary, Professor Tesn comes to a desirable intuition, stating that the attacks on 9/11 do not demonstrate the appropriateness of any specific degree of curtailment of liberty. n173 Unfortunately, he highlights the logical loophole in his test by later conceding that some restrictions to liberty may be justified. n174 And thats the catch. Intrusions may never have to end so long as the government finds terrorism a security threat and justifies the intrusion with muddied calculations. Wars on malleable terms like terror are collectively the Achilles heel to Profesor Tesn s formulation.

To ameliorate Professor Tesn s test and effect his intent to uphold human rights, national security should be balanced from a strong, individual-rights methodology. A powerful way to explain how this is done is Murray Rothbards approach in his work, The Ethics of Liberty. n175 In the chapter, Human Rights As Property Rights, Rothbard takes the premise that all rights, including human rights, ought to be viewed as property. n176 Blacks Law dictionary defines property rights as a bundle which traditionally includes the right to possess, use, and enjoy, free from undue government interference. n177 Rothbard posits that when human rights are not put in terms of property rights, people tend to weaken those rights on behalf of public policy or the public good. n178 In the TSAs case, the public policy of preventing terrorist attacks or hijackings is seen as that policy which weakens the Fourth Amendment right to be free from unreasonable searches and seizures. n179 Rothbard lays out this principle with an analogy on First Amendment and free speech. n180 He points to the famous example of Justice Holmes in Schenck v. United States, where Holmes states, The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. n181 Rothbard contends that Holmes, in trying to say that freedom of speech cannot be absolute and should cave to public policy, made an error of application. n182 He states, For, logically, the shouter is either a patron or the theater owner. If he is the theater owner, he is violating the property rights of the patrons in quiet enjoyment of the performance, for which he took their money in the first place. If he is another patron, then he is violating both the property right of the patrons to watching the performance and the property right of the owner, for he is violating

the terms of his being there. For those terms surely include not violating the owners property by disrupting the performance he is putting on. In either case, he may be prosecuted as a violator of property rights; therefore, when we concentrate on the property rights involved, we see that the Holmes case implies no need for the law to weaken the absolute nature of rights. n183 Justice Black also recognized this misapplication, and countered Holmes in later commentary: I went to a theater last night with you. I have an idea if you and I had gotten up and marched around that theater, whether we said anything or not, we would have been arrested. Nobody has ever said that the First Amendment gives people a right to go anywhere in the world they want to go or say anything in the world they want to say. Buying the theater tickets did not buy the opportunity to make a speech there. We have a system of property in this country which is also protected by the Constitution. We have a system of property, which means that a man does not have a right to do anything he wants anywhere he wants to do it. For instance, I would feel a little badly if somebody were to try to come into my house and tell me that he had a Constitutional right to come in there because he wanted to make a speech against the Supreme Court. I realize the freedom of people to make a speech against the Supreme Court, but I do not want him to make it in my house.

That is a wonderful aphorism about shouting "fire" in a crowded theater. But you do not have to shout "fire" to get arrested. If a person creates a disorder in a theater, they would get him there not because of what he hollered but because he hollered. They would get him not because of any views he had but because they thought he did not have any views that they wanted to hear there. That is the way I would answer not because of what he shouted but because he shouted. n184 Just like the theater, flight is inherently a private venture paid for by customers in the market. While theater may not itself be a deadly experience (Lincoln may say different), the conditions of shouting fire in a crowded theater could turn dangerous or deadly as readily as someone bringing snakes, knives or explosives on a plane. Airline companies naturally would not allow dangerous conditions that would threaten their business just like a theater would not let a noisy patron scare or endanger the audience. So why does the government get to enact violations of privacy on private property among private persons doing business in one arena but not another? When put into this context, it becomes clear that if perceived dangerousness is the only thread between individual rights and government intrusions, there really is no limit to where the government can intervene so long as it is viewed as reasonable. And, as the public has seen, the TSA and Department of Homeland Security have capitalized on this concept, expanding wherever possible to enact searches in the name of fighting terrorism. n185 The Fourth Amendment, as part of The Bill of Rights, is about limiting government. n186 Instead of letting the government intrude on otherwise private exchanges where both the

merchants and the customers generally have an interest in safety, why not allow self-regulation and the market to develop the most effective means possible? This is the only option available to the government if we are to take natural rights seriously as upheld in the Constitution. Some may contend that privatization is no better for rights because airline companies may enact procedures even more extreme, especially out of concern that anything less than the best safety could lead to major lawsuits. However, such rationale should not be shied away from because the airlines and airports which offer the least intrusive means to effective security will likely draw the most customers. n187 Even more, competition in the market with security measures will help delineate which practices are the most effective at deterrence. n188 This idea has been tested to some extent because the TSA allowed for airports to optout of its screening requirements until the TSA ended the program in early 2011. n189 Sixteen airports total were allowed to opt-out and use private contractors. n190 More airports applied to opt-out, but were denied as the program closed. n191 A new law passed in February, 2012, allows airports to request a replacement of the TSA with private screeners. n192 The Orlando Sanford International Airport has headed the movement with a request to opt-out amidst passenger complaints about the TSA. n193 A study of the opt-out airports may prove that private sector security can be just as secure without resorting to backscatter x-rays and enhanced pat-downs. Those who may complain that terrorism will inevitably sneak through the privately regulated market are forgetting the current environment. n194 The TSA is not at every airport, does not cover private jets, and has itself reported at least 25,000 security breaches since its creation. n195 As aforementioned, the procedures the TSA use may not even effectively capture

every item or potential threat. n196 Moving toward privatization doesnt mean everything will be perfect, but its not moving away from an already perfect, loophole-free system. In sum, the Fourth Amendment ought to be given real weight by removing the government element altogether. There is no reason that the private market couldnt take care of security on its own because business owners have a vested interest in not having planes blown up or customers injured with the litigation to follow. At a minimum, the government ought not be searching unreasonably, which, under the current Fourth Amendment, means that probable cause is required for intimate searches and reasonable suspicion for Terry-styled stops. IS THERE A BETTER APPROACH TO OFFER IN THE INTERIM? LOOK AT GERMANY, ISRAEL & INFRARED TECHNOLOGY To offer a possible solution in the interim, I suggest taking a cue from Germanys airport security measures for what not to do, a cue from Israels measures for what could be done, and a look at infrared imaging for a safer alternative to backscatter x-rays. Germany rejected the backscatter x-ray machines after testing it on approximately 809,000 travelers. n197 The German government found that the time-consuming false alarms, often caused by clothing folds, outweighed the otherwise high rate of detection. n198 The European Union also agreed to discontinue backscatter x-rays and banned all full-body scanners using x-ray technology, emphasizing a directive to maintain strict safeguards to protect health and fundamental rights. n199 Israel does not use backscatter x-rays either. n200 Instead, they use sophisticated, intelligent, lookouts for suspected terrorists. Some describe it as profiling, others say its looking for terrorists instead of searching for weapons. n201 Israel maintains high standards for its agents who use psychological screening methods, requiring college degrees and an

immediate firing if they make a mistake. n202 While its true that flagged travelers may get patdowns and intense, multi-hour questioning, the native Israelis tend to make it through with littleto-no issue. n203 Of course, this isnt to say that the methods may raise other privacy concerns (especially if the questions ask something personal), but the point remains that there are ways to effectively prevent terrorism without resorting to an intimate deprivation of rights. n204 In addition to the profiling, armed air marshals are trained to take down any dangerous persons. n205 The marshals are disguised as regular passengers and only the pilots know who they really are. n206 Marshals have been effective, even taking down a gunman on American soil at a Los Angeles airport. n207 While the marshals may add expense, officials argue it is well worth the measure. n208 Especially beneficial to preserving rights is that marshal presence does not invade individual privacy like scanners and pat-downs. An adoption of some of the Israeli methods, along with traditional magnetometers, may offer a well-rounded security system that doesnt compromise the general publics liberties. As aforementioned, this doesnt mean the TSA has to be the group screening, it could simply be an alternative for private screening companies to use in lieu of the TSA. The market will test what works. In addition to looking at Israels methods, there is one type of technology that could help security measures while avoiding some health and privacy issues. Infrared or thermal imaging may be an attractive option because it can passively accept infrared rays, creating a heat outline which can reveal underlying objects. n209 Unlike backscatter x-rays, infrared imaging is generally safe and can register any object so long as it has a temperature above absolute zero. n210 The technology has already been used in airports to help detect and prevent swine flu spread. n211 Infrared scanning may be a practical alternative to backscatter x-rays if one

describes it to the court as an improved least restrictive means. More research should be done to ensure it does not raise more privacy concerns. IMPLICATIONS OF A STRONG FOURTH AMENDMENT IN THE BROADER CONTEXT OF NATIONAL SECURITY With the advocacy of privatization comes the question of whether or not there is ever a compelling governmental reason for intrusions which would violate standard Constitutional protections for American citizens. This author would answer a resounding No! as a shared view of the law enforcement camp on national security philosophy. Professor Tesn describes the law enforcement camp view on terrorist activities in his work, Targeted Killing in War and Peace: A Philosophical Analysis, writing, The liberal state has at its disposal enough tools to respond to this kind of crime. n212 Simply put, acts of terrorism are already deemed wrong and punishable under the criminal code and it is up to the government, as with any other unlawful act, to be vigilant in stopping it within the context of the Constitution. If one applies the Fourth Amendment with a property-rights restriction on government as Rothbard suggests, the only field left to address is intrusion for imminent harm. Professor Tesn highlights a common worry about such imminent harm that when the governments national security measures are limited, without exception, the result will be the fruition of sinister plots by principled evildoers. 213 Tesn posits this concern in the context of targeted killings, but, as will be and has been shown, the flaws of the threat justifies the means mentality to targeted killings exceptions can apply to intrusion exceptions generally. n214 He writes, the liberal state may kill a targeted terrorist in peacetime only when necessary to prevent the deaths of a substantial number of innocent persons typically, when necessary to foil a deadly plot or a broader plan to conduct terrorist activities. He defines a terrorist as someone who (1) does not identify himself as a combatant, (2) uses immoral

violent means (the deliberate killing of civilians), (3) in the pursuit of an unjust political cause. n215 Tesn conditions these factors on the determinate person being culpable, the liberal state having a just cause, and capture being impossible or prohibitive. n216 Professor Tesns formulation demonstrates factors which appear to ground probable cause for conspiracy tied to some violent crime, likely murder. n217 It is difficult to see why the government cannot arrest this determinate person, save the one factor that capture is either impossible or prohibitive. But this factor is not dispositive. Under a law enforcement approach, the government would be able to take down an alleged terrorist (an American citizen for this discussion) with violence in-as-much as the government could take down any other criminal who is about to cause grave harm to others or to agents of the government. n218 A corollary example would be an armed bank robber who goes to hold up a bank and potentially use violent means in obtaining the money. If a police officer were to arrive on the scene, one could imagine that the officer would be justified in using deadly force if necessary to stop the robber who does not surrender. Likewise, the same principle should be applied to any alleged American terrorist where the proof of the impending act reaches a probable cause level. Government agents can approach a terrorist to effect an arrest and use deadly force if necessary to prevent similar deadly force. Emphasizing again that the terrorist is also a U.S. citizen, anything less than due process subverts the purpose of Constitutional protections and the burden the government must carry. (The law and philosophy on the treatment of non-citizens is an independently robust subject not covered in this paper). A further example: lets suppose the government reaches a reasonable suspicion late in a terrorist plot, and an unidentified terrorist, also an American citizen, is on the cusp of carrying out a deed of mass murder, say detonating a bomb strapped to his body in the middle of Times

Square. Does that give the government the right to search every person in the Times Square district? One cannot say that it does without conceding that individualized suspicion is not being met, and therefore is violative of the Fourth Amendment. Holding to Constitutional protections leaves the government with the choice to inform people in the area of the potential threat and/or try to determine who the potential perpetrator is using lawful means and finding reasonable suspicion/probable cause. Anyone objecting to this principle would have to concede that they are not consistent in carrying out the Fourth Amendment because reasonable suspicion of threats, a lesser standard, is being applied. The purpose of these examples is to show that national security exceptions, no matter the arena, tend to exchange individualized suspicion for general suspicion. No longer is the Fourth Amendment protecting individuals against government, but, as Rothbard lamented, the right is weakened for a public policy. n219 This standard is simply untenable, especially where suspicion is of an undetermined person, because it cannot be measured for the reasons aforesaid in calculating harm versus deprivation of rights. n220 In addition, Tesns call to categorically distinguish terrorists from other criminals who may carry out acts of murder and/or destruction is more of a semantic than a meaningful rule in affecting American citizens rights. n221 Philosophically, a perpetrators ideology has no rational relationship to justifying an invasion of rights when the harms are indistinguishable from existing crimes. If one simply focuses on the actual harms performed, the difference between general criminal actors and those labeled terrorists fades away. For example, psychotic murderers and thieves who want to blow up city and school buses could just as readily be considered terrorists if, instead of acting for selfish reasons/mental issues, they claim a political cause. n222 Such a fine distinction should cause one to inquire

further. Why should the death of 32 people by a deranged student should be evaluated differently if the same act were performed to promote Jihadist goals? n222 If the answer is solely because ideological terrorists carry a continuing threat, the reasoning is thin because criminal actors in the public sphere have no sense of abatement - humans tend to commit harms as a part of existence. n224 If the differentiation is to be considered under the idea of just war, we find the line thinned again when the government creates missions like the War on Drugs, expanding search powers to fight a specific crime. n225. In this context, it becomes clear that ideology isnt the core issue for those who seek exceptions to the Fourth Amendment. The core issue is preventing grand-scale harm. However, the criminal law already takes into consideration actual harm or intent to harm. These laws can readily be applied to terrorist acts. A look into ideology is therefore meaningless unless it is concomitant with criminal intent. To summarize the appropriate course to national security, we must look to the initial stage, how information is gathered (an alert), and then to the intrusions of government in reaction to the information it obtains. The government must comply with the Constitution in how it gets the information it uses, lest it face exclusion in court. n226 If we hold that the government cannot obtain information through mass invasions of privacy with programs like the TSA, then anything it bases its suspicions on must be with lawful means under the Constitution. It then follows that the government can enact typical law enforcement tactics to prevent acts of terrorism under traditional Constitutional standards. Because categorical exceptions to the Fourth Amendment inherently taint the information gathering stage, the government cannot be in the business of providing security at the expense of rights. Therefore, the re-privatization of the TSA and other invasive security measures is the only cure.

A BRIEF COMMENT ON THE EXTENT OF PRIVITIZATION FOR NATIONAL SECURITY While the repeal of the TSA is not too hard to imagine as they were created just a little over 10 years ago, what should be done with the rest of national security is a tricky issue. The balancing of privatization, rights, and national security can extend to all levels of defense. This author would prefer to move toward privatization of all government function in an effort to extend the principle of voluntaryism, the idea that human interactions and associations should not be compulsory but rather brought about by free choices and mutual cooperation. n227 However, moving toward privatization doesnt require the elimination of the U.S. government to get there. To achieve this end, I offer a plan to turn the U.S. government bit-by-bit into a not-for-profit. n228 Like a typical not-for-profit business, the U.S. government would lose its monopoly powers on services, would have to raise funds through voluntary contributions, and would be subject to public disclosure of its activities. Funds raised could be ear-marked to specific divisions to determine what the public truly cares about. Applying this to national security, the U.S. government would have to demonstrate its worth to the public by advertising its activities and reporting what it is doing. Because the government is acting as a not-for-profit, it must be more liberal in its disclosure for all major expenditures (with possibly some time-based restrictions for sensitive issues such as rescue missions). The public can then evaluate whether the government is providing efficient and Constitution-friendly service and donate based on perceived value just like any other civic/charitable organization. The purpose of this method is to have a separate check on the government through the purse and to bring about a more conscious choice in national funding.

Some may complain that there will be a free-rider problem, but this is not an issue if one compares that to our current situation, where the top 10 percent already pay 68 percent of the taxes. n229 If the rich and/or business owners think funding national security is essential to protect their assets, then they will still put their monies where they find value (and so can the poor and middle-class). n230 Such donations to national security initiatives may even be a public relations measure for businesses. Just as Walmart touts where it donates in the community, so may other businesses advertise their charity to government to attract customers. n231 The beauty of this system is that it allows a transition period where the market can compete against the government, bringing more options to the table where the actions would be otherwise considered unlawful (such as the postal service and currency development). n232 THE FUTURE OF PRIVACY UNDER NATIONAL SECURITY DIRECTIVES: MY PREDICTION It can no longer be denied that the United States government is moving America toward a dystopian environment akin to that of 1984 and Brave New World. n233 This author is willing to stand on a ledge and siren a warning to all who will listen. The time to act is now. If the people of America continue to let their freedoms slip without protest, the government will continue to burden human and Constitutional rights until the public cries out for an alleviation. The problems that the government causes by its own intrusions will then be used to sell its own version of a solution. That solution will be a wholesale end to privacy for the sake of efficiency in public travel and business. The birth pangs of what is to come came across the mainstream news media in 2002 when a Florida family received RFID microchips in their skin containing personal medical information. n233 The family decided to get these implants in the event of future medical

emergencies. n235 Other people followed, citing the events of 9/11as a need for the security measure. n236 The RFID chip has continued to make headway across the globe, and has found a home in U.S. passports. n237 It is the authors opinion that an implantable chip or something akin to that level of intimate storage will be the governments offer to those tired of the TSAs practices spreading across the U.S. While it may appear to be an attractive relief and a decent security measure, there cannot be a greater privacy invasion than the government literally forcing its way under a persons skin. Such actions do no comport with the right to possession of oneself and ought to be vigilantly fought against if the Fourth Amendment and the right to privacy is to have any meaning left. The American public needs to put the onus on government. It is the government that needs to accept rights and work around them, not the people who need to sacrifice rights and work around national security. Until this mentality changes, Americans will continue to lose all of their rights under the guise of preserving them.

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INTRODUCTION n1See Transportation Security Administration, Our History, http://www.tsa.gov/research/tribute/history.shtm (Retrieved: 3/15/12) 6 USCS 111 (2012); Department of Homeland Security, Homeland Security Act of 2002, http://www.dhs.gov/xabout/laws/law_regulation_rule_0011.shtm (Retrieved: 3/15/12) The White House, The Executive Branch, http://www.whitehouse.gov/ourgovernment/executive-branch (Retrieved: 4/10/12) n2 DHS, Written testimony of Transportation Security Administration (TSA) Administrator John Pistole for a House Committee on Appropriations, Subcommittee on Homeland Security hearing on the Presidents budget request for TSA for Fiscal Year 2013, Released 2/28/12, http://www.dhs.gov/ynews/testimony/20120228-tsa-fy13-budgetrequest.shtm (Retrieved: 4/10/12) n3 See South Parks Reverse Cowgirl episode, which mocks the TSA with a spoof group called the Toilet Inspection Administration. Southparkstudios.com, Reverse Cowgirl, Aired 3/14/12, http://www.southparkstudios.com/full-episodes/s16e01-reverse-cowgirl, (Retrieved: 3/20/12) Also see Saturday Night Lives skit, Message from the TSA, which lampoons the TSA, comparing them to a sex hotline commercial. Saturday Night Live, NBCUniversal Media, LLC, Message From the TSA, Aired 11/20/10, http://www.nbc.com/saturdaynight-live/video/message-from-tsa/1261478/, (Retrieved: 3/25/12) n4 An expansive list of complaints against the TSA in the forms of news stories, lawsuits and YouTube videos have been collected on the Website TravelUnderground.org. See Bill Fisher, Master Lists of TSA Abuses & Crimes, Updated 2/14/12, http://www.travelunderground.org/index.php?pages/tsa-abuse-master-lists/#BillFisher (Retrieved: 3/25/12) HISTORY & BACKGROUND n5 See n1 supra. n6 Id. n7 Id.

n8 See Department of Homeland Security, Budget-in-Brief Fiscal Year 2012, (2012). U.S. DEPARTMENT OF HOMELAND SECURITY. http://www.dhs.gov/xlibrary/assets/budget-bib-fy2012.pdf (Retrieved: 3/25/12)

n9 Id. n10 Id.

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n11 See TSA, What Is TSA?, http://www.tsa.gov/who_we_are/what_is_tsa.shtm (Retrieved: 3/25/12) TSA, TSA News & Happenings, VIPR Teams Enhance Security at Major Local Transportation Facilities, http://www.tsa.gov/press/happenings/vipr_blockisland.shtm (Retrieved: 3/25/12) n12 Id. n13 Id. n14 Id. n15 See Dr. Joseph Mercola, Huffington Post, Airport Scanners: Radiation Is Not the Only Health-Hazard, Posted 12/15/10, http://www.huffingtonpost.com/dr-mercola/airportscanners-how-much-radiation-_b_793071.html (Retrieved: 3/25/12) Marc Rotenberg, CNN Opinion, Body scanners, pat-downs violate law and privacy, Posted 11/19/10, http://www.cnn.com/2010/OPINION/11/17/rotenberg.scanners.privacy/index.html?eref=r ss_topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ rss%2Fcnn_topstories+%28RSS%3A+Top+Stories%29 (Retrieved: 4/10/12) Jeffrey Goldberg, The Atlantic, For the First Time, the TSA Meets Resistance, Posted 10/29/10, http://www.theatlantic.com/national/archive/2010/10/for-the-first-time-the-tsameets-resistance/65390/ (Retrieved: 4/10/12) n16 Id. n17 See n11. n18 See n15. n19 See Rottenberg, Body scanners, pat-downs violate law and privacy, n15. n20 See TSA, Privacy, http://www.tsa.gov/approach/tech/ait/privacy.shtm (Retrieved: 4/10/12)

Felisa Cardona, The Denver Post, Denver International Airport unveils more modest security screening, Posted 8/6/11, http://www.denverpost.com/commented/ci_18628299?source=commented#ixzz1mJZntGNm (Retrieved: 4/10/12) n21 Id. n22 Id. n23 Id. n24 Id. n25 See Electronic Privacy Information Center, EPIC v. DHS (Suspension of Body Scanner Program) http://epic.org/privacy/body_scanners/epic_v_dhs_suspension_of_body.html (Retrieved: 4/10/12) Jeffrey Rosen, The Washington Post, The TSA is invasive, annoying - and unconstitutional, Posted 11/28/10, http://www.washingtonpost.com/wpdyn/content/article/2010/11/26/AR2010112604290.html (Retrieved: 4/10/12) Zogby International, Zogby Interactive: 61% Oppose Full Body Scans and TSA Pat Downs; 48% Will Seek Alternative to Flying, Posted 11/23/10, http://www.ibopezogby.com/news/2010/11/23/zogby-interactive-61-oppose-full-bodyscans-and-tsa-pat-downs-48-will-seek-alternative-to-flying/ (Retrieved: 4/10/12)

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n26 Id. See Electronic Privacy Information Center. n27 Id. n28 See Leon Watson, Daily Mail Online, Airport scanners that 'strip' passengers naked are banned over fears they cause cancer, Updated 11/17/11, http://www.dailymail.co.uk/news/article-2062608/Naked-airport-scanners-banned-fearscause-cancer.html#ixzz1jwPd7lJZ (Retrieved: 4/10/12) Lauren Schenkman, American Association for the Advancement of Science, Scientists Press Government on Airport Scanner Safety, Posted 5/17/11, http://news.sciencemag.org/scienceinsider/2011/05/scientists-press-government-ona.html (Retrieved: 4/10/12) n29 Id. See Schenkman, Scientists Press Government on Airport Scanner Safety. n30 Id.

n31 Id. n32 Alison Young and Blake Morrison, USA Today, TSA to retest airport body scanners for radiation, Updated 3/14/11, http://www.usatoday.com/news/washington/2011-03-11tsa-scans_N.htm (Retrieved: 4/10/12) David Kravets, Wired.com, TSA Admits Bungling of Airport Body-Scanner Radiation Tests, Posted 3/15/11, http://www.wired.com/threatlevel/2011/03/tsa-radiation-testbungling/ (Retrieved: 4/10/12) n33 Id. n34 Id. See Kravets, TSA Admits Bungling of Airport Body-Scanner Radiation Tests. n35 Pursuant to the revised Screening Checkpoint SOP, TSA uses two types of AIT systems: backscatter X-ray machines and millimeter wave scanners[b]ecause the SOP in question contains sensitive security information, it has not been publicly released and is not part of the record before the Court. Roberts v. Napolitano, 798 F. Supp. 2d 7, 9 (D.D.C. 2011) n36 Id. See also: Attempts to get information on the TSAs practices has been met with resistance. See Keith Laing, The Hill, Former lawmaker's group sues TSA for alleged Freedom of Information Act violations, Posted 3/16/12, http://thehill.com/blogs/transportation-report/tsa/216461-former-lawmakers-group-suestsa-for-alleged-freedom-of-information-act-violations (Retrieved: 4/10/12) Security expert Bruce Schneier has also been reportedly blocked from speaking at a congressional hearing about the TSAs security theater because of his participation in lawsuits against the TSA. See Ian Thompson, The Register , TSA bars security guru from perv scanner testimony, Posted 3/26/12, http://www.theregister.co.uk/2012/03/26/tsa_schneier_congress_block/ (Retrieved: 4/10/12) See Steve Watson, Infowars.com, TSA Blocks Security Expert From Testifying To Congress, Posted 3/27/12, http://www.infowars.com/tsa-blocks-security-expert-fromtestifying-to-congress/ (Retrieved: 4/10/12) n37 See Heidi Hemmat, Fox 31 Denver, Colorado man claims he was 'sexually assaulted' by TSA, Posted 4/15/11, http://ktwbtv.trb.com/news/kdvr-colorado-man-claims-he-wassexually-assaulted-by-tsa-20110415,0,2193479.story (Retrieved: 4/10/12) Maribeth Kuzmeski, Women On Business, Its Not So Bad Until TSA Happens To You! Posted March, 2011, http://www.womenonbusiness.com/it%E2%80%99s-not-sobad-until-tsa-happens-to-you/ (Retrieved: 4/10/12)

Heather Haddon, New York Post, Flier's TSA 'grope' nightmare, http://www.nypost.com/p/news/local/queens/flier_tsa_grope_nightmare_5EsDbrQPc99D ADfZNBjI4J?CMP=OTC-rss&FEEDNAME= InsuranceQuotes.org, LewRockwell.com,The 12 Scariest TSA Stories of All Time Posted 8/22/11, http://lewrockwell.com/rep2/12-scariest-tsa-stories.html (Retrieved: 4/10/12) n38 See n15, Goldberg, For the First Time, the TSA Meets Resistance See also, TheSmokingGun.com, Tiny Payout In TSA Breast Exposure Lawsuit, Posted 6/1/11, http://www.thesmokinggun.com/documents/stupid/tiny-tsa-payout-over-breastexposure-034978 (Retrieved: 4/10/12)

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n39 Thomas Frank, USA TODAY, TSA takes explosives screening to fliers, Updated 2/17/10, http://www.usatoday.com/travel/flights/2010-02-16-TSA-swabs_N.htm (Retrieved: 4/10/12) n40 Deborah Newell, TSA News, The TSAs new FAST program is something to be furious about, Posted 12/23/11, http://tsanewsblog.com/581/news/the-tsas-new-fast-program-issomething-to-be-furious-about/ (Retrieved: 4/10/12) Aliya Sternstein, Nextgov, Experts chide TSA for poor risk assessment of security measures, Updated 9/30/11, http://www.nextgov.com/nextgov/ng_20110930_2887.php (Retrieved: 4/10/12) U.S. Department of Homeland Security, DHS' Progress in 2011: By the Numbers, http://www.dhs.gov/xabout/2011-dhs-accomplishments-by-the-numbers.shtm (Retrieved: 4/5/12) n41 Id. CHARACTERIZATION OF THE COMPLAINTS n42 A petition was filed on the www.whitehouse.gov Website asking for the government to abolish the TSA. It received 31,956 signers before it was responded to by John Pistole, the administrator of the TSA. We the People,WE PETITION THE OBAMA ADMINISTRATION TO: Abolish the TSA, and use its monstrous budget to fund more sophisticated, less intrusive counter-terrorism intelligence, Posted 9/22/11, https://wwws.whitehouse.gov/petitions/!/petition/abolish-tsa-and-use-its-monstrousbudget-fund-more-sophisticated-less-intrusive-counter-terrorism/c7L94bFB (Retrieved: 4/10/12) See n4 Fisher, Master Lists of TSA Abuses & Crimes.

See n25 Zogby International, Zogby Interactive: 61% Oppose Full Body Scans and TSA Pat Downs; 48% Will Seek Alternative to Flying. n43 See for example: Mary Forgione, LA Times, TSA's pat-down of 6-year-old girl draws anger -- and a call for change Posted 4/19/11, http://articles.latimes.com/2011/apr/19/news/la-trb-tsa-patdown-child-20110416 (Retrieved: 4/10/12) See for example: Ken Kaye, Sun Sentinel, Three elderly South Florida women say TSA made them strip, Posted 12/5/11, http://articles.sun-sentinel.com/2011-12-05/travel/fltsa-strip-searches-20111205_1_tsa-officers-secondary-screenings-jetblue-flight (Retrieved: 4/10/12) n44 See for example: Joy Jernigan, MSNBC, Baby receives pat-down at Kansas City airport, Updated 5/11/11, http://www.msnbc.msn.com/id/42978267/ns/travel-news/t/babyreceives-pat-down-kansas-city-airport/#.Tyc4o8g1q64 (Retrieved: 4/10/12) See for example: Robert Dominguez, NYDailyNews.com, Bad timing: Video of TSA pat-down of 3-year-old girl resurfaces after two years, Posted 11/17/10, http://articles.nydailynews.com/2010-11-17/entertainment/27081483_1_tsa-security-patdown-full-body-scanner (Retrieved: 4/10/12) See for example: Russia Today, Terrorist tyke? TSA pats down toddler in wheelchair (VIDEO), Posted 3/19/12, http://rt.com/news/tsa-chicago-toddler-inspection-888/ (Retrieved: 4/10/12) See for example: Justine Panieri, The Heald-News, 15-year-old girl: To TSA agents, Im the face of terrorism, Posted 6/14/11, http://heraldnews.suntimes.com/opinions/5864217-474/15-year-old-girl-to-tsa-agents-imthe-face-of-terrorism.html (Retrieved: 4/10/12) See for example: Patrick Henningsen, Infowars.com, Outrageous: TSA shake-down quadruple amputee at Phoenix airport, Posted 3/12/12, http://www.infowars.com/outrageous-tsa-shake-down-quadruple-amputee-at-phoenixairport/ (Retrieved: 4/10/12) See for example: Wsbtv.com, Woman claims unfair TSA search over big hair, Updated 9/22/11, http://www.wsbtv.com/news/news/woman-claims-unfair-tsa-search-over-bighair/nFBKx/ (Retrieved: 4/10/12) n45 TMZ Staff, TMZ, EX-MISS USA -- I WAS 'MOLESTED' DURING TSA PAT DOWN, Posted 4/28/11, http://www.tmz.com/2011/04/28/former-miss-usa-susie-castillo-sexuallymolested-tsa-patdown-video-dallas-forth-worth-airport/#.Tyc2Ucg1q64 (Retrieved: 4/10/12)

ABC News, Did Florida Grandmother's TSA Pat-Down Go Too Far? Posted 7/15/11, http://abcnews.go.com/Travel/video/florida-grandmothers-tsa-pat-14080930 (Retrieved: 4/10/12) See supra n37 Hemmat, Colorado man claims he was 'sexually assaulted' by TSA. n46 See Jim Hoffer, ABC News 7, New York, Posted 1/4/11, Investigation: TSA thefts at NYC airports http://abclocal.go.com/wabc/story?section=news/investigators&id=7879644 (Retrieved: 4/10/12) Hugo Martn, LA Times, Here's what LAX passengers say TSA agents lost or damaged, Posted 5/30/11, http://articles.latimes.com/2011/may/30/business/la-fi-travelbriefcase-20110530 (Retrieved: 4/10/12) Steve Campion, ABC 7 WZVN-HD, Missing money serves as warning to passengers, Posted 12/6/11, http://www.abc-7.com/story/16202342/missing-money-serves-aswarning-to-fliers (Retrieved: 4/10/12) Philip Messing, NEW YORK POST,TSA agent busted in laptop lift, Posted 1/13/12, http://www.nypost.com/p/news/local/queens/tsa_agent_busted_in_laptop_lift_AfCLbveT bNHslpbBLiYRQP?CMP=OTC-rss&FEEDNAME (Retrieved: 4/10/12) Associated Press, nj.com, TSA agent at JFK airport stole $5K from passenger, Posted 2/2/12, http://www.nj.com/news/index.ssf/2012/02/police_tsa_agent_at_jfk_airpor.html (Retrieved: 4/10/12) Billy Hallowell, TheBlaze, FOX NEWS HOST CLAIMS TSA TORE OFF FOX LOGO & SLICED UP HIS BAG, Posted 12/27/11, http://www.theblaze.com/stories/foxnews-host-claims-tsa-tore-off-fox-logo-sliced-up-his-bag/ (Retrieved: 4/10/12) n47 Maia Nolan-Partnow, Alaska Dispatch, Cissna vs. the TSA, Posted 2/28/11, http://www.alaskadispatch.com/article/cissna-vs-tsa (Retrieved: 4/10/12) Johnathon M. Seidl, The Blaze, RAND PAUL REVEALS TSA THEORY TO BECK: SCANNERS GO OFF TO JUSTIFY RANDOM PATDOWNS, Posted 1/24/12, http://www.theblaze.com/stories/rand-paul-reveals-tsa-theory-to-glenn-scanners-go-offto-justify-random-patdowns/ (Retrieved: 4/10/12) n48 PTI, New Delhi Daily News & Analysis, Kalam frisked at NY airport, India fumes, US apologises, Posted 12/13/11, http://www.dnaindia.com/india/report_kalam-frisked-atny-airport-india-fumes-us-apologises_1611842 (Retrieved: 4/10/12)

SPREAD OF THE TSA OUTSIDE AIRPORTS

PAGE 5
n49 TSA, TSA News & Happenings, VIPR Teams Enhance Security at Major Local Transportation Facilities, http://www.tsa.gov/press/happenings/vipr_blockisland.shtm (Retrieved: 4/10/12) n50 Id. n51 Id. n52 Id. n53 See 6 U.S.C. 1112 (2012) available at: http://www.law.cornell.edu/uscode/text/6/1112 (Retrieved: 4/10/12) n54 see supra n40 U.S. Department of Homeland Security, DHS' Progress in 2011: By the Numbers. n55 TSA, TSA Press Release, AMTRAK, TSA and Law Enforcement Officers Mobilize for Major Northeast Corridor Rail Security Operation, Posted 9/23/08, http://www.tsa.gov/press/releases/2008/0923.shtm (Retrieved: 4/10/12) See supra n40 Aliya Sternstein, Nextgov, Experts chide TSA for poor risk assessment of security measures; Newell, The TSAs new FAST program is something to be furious about. n56 Susan Jacobson, Orlando Sentinel, TSA spot-checks Greyhound terminal, Posted 10/23/09, http://articles.orlandosentinel.com/2009-10-23/news/0910220205_1_busterminal-greyhound-bus-greyhound-station (Retrieved: 4/10/12) Gene Healy, Reason Magazine, The TSA's War on Innocent Travelers, Posted 1/31/12, http://reason.com/archives/2012/01/31/the-tsas-war-on-innocent-travelers (Retrieved: 4/10/12) (Retrieved: 4/10/12) N57 Id. Jacobson, TSA spot-checks Greyhound terminal. n58 Heather Mills, KOB Eyewitness News 4, TSA to oversee searches at Santa Fe prom, Posted 5/20/11, http://www.kob.com/article/stories/S2122102.shtml (Retrieved: 4/10/12)

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n59 Gadi Schwartz, KOB Eyewitness News 4,Santa Fe public schools sued over prom searches, Posted 5/17/11, http://www.kob.com/article/stories/S2116447.shtml (Retrieved: 4/10/12)

n60 KOAT.com, KOAT 7, Albuquerque,No TSA Agents At Prom Despite Court Ruling, Posted 5/22/11, http://www.koat.com/r/27984342/detail.html (Retrieved: 4/10/12) n61 David Wallechinsky, Noel Brinkerhoff, AllGov, Tennessee First State to Allow TSA Highway Random Search Program, Posted 12/8/11, http://www.allgov.com/Controversies/ViewNews/Tennessee_First_State_to_Allow_TSA _Highway_Random_Search_Program_111108 (Retrieved: 4/10/12) Tim Cushing, techdirt.com, TSA Decides Terrorists Must Be Driving; Partners With Tenn. Law Enforcement To Randomly Search Vehicles, Posted 10/21/11, http://www.techdirt.com/articles/20111020/11465616440/tsa-decides-terrorists-must-bedriving-partners-with-tenn-law-enforcement-to-randomly-search-vehicles.shtml (Retrieved: 4/10/12) n62 Charles Schelle, SarasotaPatch, TSA Conducts Car Search at SRQ, Posted 1/4/12, http://sarasota.patch.com/articles/tsa-conducts-random-car-inspections-at-srq#video8830631 (Retrieved: 4/10/12) THE TSA VS. BILL OF RIGHTS n63 Halperin, Morton H, and Daniel N. Hoffman. Freedom Vs. National Security: Secrecy and Surveillance. New York: Chelsea House Publishers, 1977. Print. pg. xii n64 The United States Constitution does not explicitly mention any right of privacy. A right of personal privacy, or a guarantee of certain areas or zones of privacy, however, does exist under the United States Constitution. Roe v. Wade, 410 U.S. 113, 152 (U.S. 1973) Freedom to travel throughout the United States has long been recognized as a basic right under the United States Constitutionthe right to travel interstate was grounded upon the Privileges and Immunities Clause of U.S. Const. art. IV, 2. Shapiro v. Thompson, 394 U.S. 618, 630-631 (U.S. 1969) n65 See Staff & Associated Press, The Christian Science Monitor, Why Rand Paul refused a TSA pat down, missed flight to D.C. Posted 1/23/12, http://www.csmonitor.com/USA/Latest-News-Wires/2012/0123/Why-Rand-Paulrefused-a-TSA-pat-down-missed-flight-to-D.C (Retrieved: 4/10/12) CBS Denver, Woman Claims She Missed Flight Because Of Gender, Posted 2/9/12, http://denver.cbslocal.com/2012/02/09/woman-claims-she-missed-flight-because-ofgender/ (Retrieved: 4/10/12) Daily Mail Reporter, Daily Mail,17-year-old barred from flight - because she had a DECORATIVE gun on side of her purse, Posted 12/2/11,

http://www.dailymail.co.uk/news/article-2069023/Vanessa-Gibbs-17-barred-flight-gunhandbag.html (Retrieved: 4/10/12) n66 TSA, Frequently Asked Questions Program, http://www.tsa.gov/what_we_do/optout/spp_faqs.shtm (Retrieved: 4/10/12) n67 Id. n68 United States v. Davis, 482 F.2d 893, 908 (9th Cir. Cal. 1973)

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n69 United States v. Davis, 482 F.2d 893, 910 (9th Cir. Cal. 1973) n70 Id. n71 See supra n66. n72 United States v. Davis, 482 F.2d 893, 914-15 (9th Cir. Cal. 1973) n73 See United States v. McCarty, 648 F.3d 820 (9th Cir. Haw. 2011) n74 The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. n6 Such a rule would afford terrorists n7 multiple opportunities to attempt to penetrate airport security by "electing not to fly" on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. United States v. Aukai, 497 F.3d 955, 960-961 (9th Cir. Haw. 2007) n75 Id. n76 United States v. McCarty, 648 F.3d 820, 830-31 (9th Cir. Haw. 2011) n77 Id. n78 see supra n74 n79 See United States v. McCarty, 648 F.3d 820, 834-835 (9th Cir. Haw. 2011)

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ATTEMPTS TO SUE THE TSA

n80 See Ventura v. Napolitano, 2011 U.S. Dist. LEXIS 127685 (D. Minn. Nov. 3, 2011). This is not the first challenge to TSA's enhanced airport screening procedures to be brought in federal courts. In every case, the court has determined that it lacks jurisdiction to hear such challenges. See Roberts v. Napolitano, Civil No. 10-1966, 2011 U.S. Dist. LEXIS 72653, 2011 WL 2678950 (D.D.C. July 7, 2011); Durso v. Napolitano, Civil No. 10-2066, 2011 U.S. Dist. LEXIS 71607, 2011 WL 2634183 (D.D.C. July 5, 2011); Redfern v. Napolitano, Civil No. 10-12048, 2011 U.S. Dist. LEXIS 49321, 2011 WL 1750445 (D. Mass. May 9, 2011); Corbett v. United States, No. 10-Civ-24106, 2011 WL 2003529 (S.D. Fla. Apr. 29, 2011). n81 Thomson v. Stone, 2006 U.S. Dist. LEXIS 13200, 2 ( E.D. Mich. Mar. 27, 2006) n82 Id. at 2. n83 Id. n84 Id. n85 Id. at 3. n86 Id. at 4 citing the Verified First Amended Complaint, P 68. n87 Id. at 9-10.

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n88 Id. n89 Id. at 12 n90 See Stone, 2006 U.S. Dist. LEXIS 13200, 16 ( E.D. Mich. Mar. 27, 2006) citing Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119, 1125 (W.D. Wash. 2005). n91 Roberts v. Napolitano, 798 F. Supp. 2d 7 (D.D.C. July 7, 2011) n92 Id. at 11-12 n93 See Tobey v. Napolitano, 808 F. Supp. 2d 830 (E.D. Va. Aug. 30, 2011) n94 The Rutherford Institute, District Court Agrees to Keep Aaron Tobey TSA Protest Case Alive, Rejects Governments Motion to Dismiss Airport Stripper Lawsuit, Posted 8/30,11, https://www.rutherford.org/publications_resources/on_the_front_lines/district_court_agre es_to_keep_aaron_tobey_tsa_protest_case_alive_rejects_go (Retrieved 4/11/12)

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n95 Id.

n96 Id. n97 Id. n98 see supra n91 Roberts v. Napolitano, 798 F. Supp. 2d 7 (D.D.C. July 7, 2011) n99 Id. at 844-45. n100 Id. at 845-46. n101 Id. at 848; 850. n102 Id. at 851. n103 Ventura v. Napolitano, 2011 U.S. Dist. LEXIS 127685 (D. Minn. Nov. 3, 2011) n104 Id.

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n105 Id. at 4. n106 Id. at 5-7. n107 Id. at 11-13. n108 Brian Bakst, Huffington Post, Jesse Ventura Lawsuit Dismissed, Former Gov. Says He'll 'Never Stand For The National Anthem Again,' Posted 11/4/11, http://www.huffingtonpost.com/2011/11/04/jesse-ventura-lawsuit_n_1076670.html (Retrieved 4/11/12) Briana Bierschbach, Politics in Minnesota, Ventura, irked about dismissed lawsuit, mulls presidential bid, Posted 11/4/11, http://politicsinminnesota.com/2011/11/venturairked-about-dismissed-lawsuit-mulls-presidential-bid/ (Retrieved 4/11/12) SUING THE TSA IN 2012 n109 See supra n88. n110 Bill Rounds, How to Vanish, Do You Need To Profitably Sue a TSA Agent? Posted 12/12/10, http://www.howtovanish.com/2010/12/do-you-need-to-sue-a-tsa-agent/ (Retrieved 4/11/12) Dr. Edwin Vieira, Jr., Ph.D., J.D., NewsWithViews.com, TRIPPING UP THE TSA, http://www.newswithviews.com/Vieira/edwin241.htm

Stephen Ceasar, Los Angeles Times, Texas bill to restrict airport pat-downs dies, Posted 6/30/11 http://articles.latimes.com/2011/jun/30/nation/la-na-texas-tsa-20110630 (Retrieved: 4/10/12) Mike Maharrey, Tenth Amendment Center, The TSA Wont Stop Itself. So The States Will. Posted: 1/24/12 http://tenthamendmentcenter.com/2012/01/24/the-tsa-wont-stop-itself-sothe-states-will/ (Retrieved: 4/10/12) n111 Id. Rounds, Do You Need To Profitably Sue a TSA Agent? n112 see n110 Vieira, Jr., TRIPPING UP THE TSA.

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n113 Id. n114 Id. n115 Kelly Holt, The New American, Anti-TSA Groping Bill Fails in Texas, Posted 6/30/11, http://thenewamerican.com/usnews/politics/8056-anti-tsa-groping-bill-fails-in-texasafter-lawmakers-leave-session-early (Retrieved 4/12/12) n116 Mike Maharrey, Tenth Amendment Center, The TSA Wont Stop Itself. So The States Will. Posted 1/24/12, http://tenthamendmentcenter.com/2012/01/24/the-tsa-wont-stopitself-so-the-states-will/ (Retrieved 4/12/12) THE TSAs NATIONAL SECURITY DIRECTIVES VS. INDIVIDUAL RIGHTS

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n117 Tobias W. Mock, THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY CHECKPOINTS, 49 Santa Clara L. Rev. 213 (2009) n118 M. Madison Taylor, The Fourth Amendment Implication of Full-Body Scanners in Preflight Screening, Rich. J.L. & Tech. 4 (Fall, 2011) n119 Wilson, Richard Ashby. Human Rights in the 'War on Terror'. Cambridge University Press, 2005. Cambridge Books Online. 21 February 2012; Liberal Security, Fernando R. Tesn pg. 57-77 available at: http://dx.doi.org/10.1017/CBO9780511511288.004 n120 Rothbard, Murray N. The Ethics of Liberty. Atlantic Highlands, N.J: Humanities Press, 1982. Print. CURRENT FOURTH AMENDMENT LEGAL APPROACHES

n121 See supra Mock, n117 at 251; Taylor, n118 at P58-9. n122 See supra n118 at 15. n123 Id. n124 See supra Mock, n117 at 232; Taylor, n118 at P32. n125 See supra Mock, n117 at 221. Also see n15.

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n126 See supra Taylor, n118 at P25 (citing Heidi Blake, Terrorists 'Could Use Exploding Breast Implants to Blow Up Jet', TELEGRAPH (Mar. 24, 2010, 8:36 AM), http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7510350/Terrorists-coulduse-exploding-breastimplants-to-blow-up-; See Mock, n117 at 246-7 (citing Sara Kehaulani Goo, Airport Pat-Down Protocol Changed: Women Complained that Security Checks Were Humiliating, Wash. Post, Dec. 23, 2004, at E01). n127 Id. n128 See supra Mock, n117 at 239 (citing Aviation Security: Hearing before the Senate Comm. on Commerce, Science, and Transportation, 109th Cong. (2006) [hereinafter Sparapani Testimony] (statement of Timothy D. Sparapani, Legislative Counsel, American Civil Liberties Union), http://www.aclu.org/privacy/gen/24856leg20060404.html (last visited Sept. 17, 2008). n129 See supra n20. n130 See supra n126. n131 See supra Mock, n117 at 237-8; Taylor, n118 at P58-9. n132 See supra Mock, n117 at 248-51. n133 See supra Mock, n117 at 226-27; 235-36. n134 See supra n132. n135 See supra Taylor, n131. n136 See supra Taylor, n118 at P51-53.

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n137 See supra Taylor, n118 at P53-54.

n138 See supra Taylor, n118 at P55. n139 See supra Taylor, n118 at P56-57. n140 See supra the discussion section ATTEMPTS TO SUE THE TSA n141 It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." United States v. McCarty, 648 F.3d 820 (9th Cir. Haw. 2011) (citing Haig v. Agee, 453 U.S. 280, 307, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509, 12 L. Ed. 2d 992, 84 S. Ct. 1659 (1964)). n142 McCarty, 648 F.3d 820, 831 (9th Cir. 2011) n143 It is seriously entertained that dangerous explosives could be anywhere: in light of the existence of new technology such as "sheet explosives," which (as described by the Ninth Circuit) are "thin, flat explosives [which] may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs." United States v. Rosales, 2011 U.S. Dist. LEXIS 137405 (D. Minn. Nov. 30, 2011) (citing United States v. McCarty, 648 F.3d 820, 825 (9th Cir. 2011).n4) n144 Id. n145 Id. n146 See supra n140.

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n147 In the area of terrorism concerns perhaps more than any other, the Legislature's superior capacity for weighing competing interests means that a court must be particularly careful not to substitute its judgment of what is desirable for that of Congress. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, [**385] (U.S. 2010) See Bonnie Berry, The New Look of Terrorism: Or, How So Many of Us Became Enemies, Quarterly Journal of Ideology, Institute for Human Services and Public Policy, Louisiana State University in Shreveport. Volume 29, 2006, Numbers 1 & 2 N148 See supra Aukai, n74. n149 United States v. McCarty, 648 F.3d 820, 830-831 (9th Cir. Haw. 2011) Blanket suspicionless searches "calibrated to [a] risk may rank as 'reasonable.'" Aukai, 497 F.3d at 958 (internal quotation marks omitted) (quoting Chandler [*831] v. Miller, 520 U.S. 305, 323, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997)). For example, if properly limited, "searches now routine at airports and at entrances to courts," are reasonable because they

respond to a "'risk to public safety [that] is substantial and real.'" Id. (quoting Chandler, 520 U.S. at 323). Generally, "airport screening searches . . . are constitutionally reasonable administrative searches because they are 'conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.'" Id. at 960 (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). n150 Id. A PHILOSOPHICAL APPROACH TO THE TSA n151 See generally Taslitz, Andrew E. Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868. The Fourth Amendment is Not A Mere Technicality Pgs. 6-7 New York: New York University Press, 2006. Print. Locke explaining fundamental property rights as, every Man has a Property in his own Person. Laslett, Peter, Lockes Two Treatises of Government. Pg. 305 New York. The Syndics of the Cambridge University Press, 1970. Print.

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n152 Wilson, Richard Ashby. Human Rights in the 'War on Terror'. Cambridge University Press, 2005. Cambridge Books Online. 21 February 2012; Liberal Security, Fernando R. Tesn pg. 59 available at: http://dx.doi.org/10.1017/CBO9780511511288.004 n153 Id. at 59. n154 Id. at 75. n155 Id. at 64. n156 Id. at 75. n157 Id.

Garner, Bryan A, and Henry C. Black. Black's Law Dictionary. St. Paul, Minn: West, 2009. Print. Entry: Property Rights. n158 The Telegraph, Telegraph Media Group Limited, Twin towers 'built to withstand plane crash, Posted 9/11/01, http://www.telegraph.co.uk/news/1340225/Twin-towers-built-towithstand-plane-crash.html (Retrieved 4/12/12)

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n159 The National Institute of Standards and Technology (NIST), U.S. Department of Commerce, Questions and Answers about the NIST WTC 7 Investigation (09/17/2010, ARCHIVE, incorporated into 9/19/2011 update), Updated 9/20/11, http://www.nist.gov/public_affairs/factsheet/wtc_qa_082108.cfm (Retrieved 4/12/12) n160 The idea that the 9/11 attacks were unimaginable appears as a motif from news media and academic discussion: In the two years before the Sept. 11 attacks, the North American Aerospace Defense Command conducted exercises simulating what the White House says was unimaginable at the time: hijacked airliners used as weapons to crash into targets and cause mass casualties. Steven Komarow and Tom Squitieri, USA TODAY, NORAD had drills of jets as weapons, Posted 4/18/04, http://www.usatoday.com/news/washington/2004-04-18-norad_x.htm (retrieved 4/12/12) The unimaginable aspect of 9/11 concerned the combination of the attacks rather than the individual terrorist actions. Uriel Rosenthal, Erwin R. Muller,The Evil of Terrorism: Diagnosis and Countermeasures, pg. 9 Charles C Thomas Pub. Ltd. 2008. Print. n161 Aaron Foley, Michigan Live LLC, Northwest Flight 253 passenger Jasper Schuringa cited as man who stopped Umar Farouk Abdul Mutallab from terror attack Posted 12/26/09, http://www.mlive.com/news/detroit/index.ssf/2009/12/northwest_flight_253_passenger.h tml (Retrieved 4/12/12) The Economist, The latest on Northwest flight 253, Posted 12/27/09, http://www.economist.com/blogs/gulliver/2009/12/the_latest_on_flight_253 (Retrieved 4/12/12) n162 The prevailing view among legal scholars is that under existing precedents, the AUMF and the concomitant war powers will continue indefinitely in force until the political branches officially declare the conflict to have endeddespite the conceptual possibility of an end, it is difficult to imagine that the gradual ebbing of popular support for jihadism would yield a sufficiently unambiguous and discernable endpoint to supply an answer to legal questions hinging on the end of hostilities.135 In this light, the prospect of a legal state of [w]ar [w]ithout [e]nd136 seems inevitable as long as the termination of counterterrorism authorities must await a single, identifiable end to the conflict.Adam Klein, The End of Al Qaeda - Rethinking the Legal End of the War on Terror,110 Colum. L. Rev. 1865,1865; 1892 (2010) n163 Huffington Post, Homeland Security Report Warns Of Rising Right-Wing Extremism, posted 5/15/09, http://www.huffingtonpost.com/2009/04/14/homeland-securityreport_n_186834.html (Retrieved 4/12/12) Extremism and Radicalization Branch, Homeland Environment Threat Analysis Division, Department of Homeland Security, (U//FOUO) Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,

Released 4/7/09, .pdf available online at: www.fas.org/irp/eprint/rightwing.pdf (Retrieved 4/12/12)

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n164 Id. n165 Tim Kern, Ludwig Von Mises Institute, TSA: Killing Us an Hour at a Time, Posted 5/29/06, http://mises.org/daily/2186 (Retrieved 4/12/12) n166 Id. n167 Id. n168 Id.

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n169 See supra n152 at 74. n170 ACLU, Surveillance Under the USA PATRIOT Act, Posted12/10/10, http://www.aclu.org/national-security/surveillance-under-usa-patriot-act (Retrieved 4/12/12) ACLU, President Obama Signs Indefinite Detention Bill Into Law, Posted 12/31/11, http://www.aclu.org/national-security/president-obama-signs-indefinite-detention-billlaw (Retrieved 4/12/12) The scanners may be hitting the streets soon, starting in NYC. See Buck Sexton, TheBlaze, REPORT: POLICE WANT TO USE THESE X-RAY SCANNERS ON NEW YORK CITY STREET, Posted 1/19/12, http://www.theblaze.com/stories/reportpolice-want-to-use-these-x-ray-scanners-on-new-york-city-streets/ (Retrieved 4/12/12) Also see Press TV,NYPD to use body scanners in New York, Posted 1/19/12, http://www.presstv.ir/detail/221926.html (Retrieved 4/12/12) n171 Topics, New York Times, State Secrets Privilege, Updated 5/24/11, http://topics.nytimes.com/topics/reference/timestopics/subjects/s/state_secrets_privilege/i ndex.html (Retrieved 4/12/12) Shayana Kadidal , JURIST Legal News and Research Services, Inc., The State Secrets Privilege and Executive Misconduct, Posted 5/30/06, http://jurist.law.pitt.edu/forumy/2006/05/state-secrets-privilege-and-executive.php (Retrieved 4/12/12) It has been shown that the U.S. government likely used the Reynolds privilege to conceal government misconduct. See Dycus, Stephen et. al. National Security Law. pg. 158 New York: Aspen Publishers, 2011. Print.

n172 See supra n35. n173 See supra n152 at 75. n174 Id.

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n175 See supra n120, Rothbard, Ethics of Liberty. n176 Id. at 113. n177 Garner, Bryan A, and Henry C. Black. Black's Law Dictionary. St. Paul, Minn: West, 2009. Print. Entry: Property Rights. n178 See supra n176. n179 See supra n141. n180 See supra n175 at 114. n181 Id.; The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Schenck v. United States, 249 U.S. 47, 52 (U.S. 1919) n182 Id.

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n183 Id.

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n184 Id. at 114-115; n185 See supra discussion section, SPREAD OF THE TSA OUTSIDE AIRPORTS. n186 ACLU, The Bill of Rights: A Brief History, Posted 3/4/02 http://www.aclu.org/racialjustice_prisoners-rights_drug-law-reform_immigrants-rights/bill-rights-brief-history (Retrieved 4/12/12)

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n187 Nick Schulz, Arnold Kling, Airline Security: Lets Go Private, Posted 1/20/10, http://www.aei.org/article/foreign-and-defense-policy/terrorism/airline-security/ (Retrieved 4/12/12)

Cristian Gherasim, Ludwig von Mises Institute, Liberalization of Airport Frisking: Federal versus Private Security Screeners, Posted 12/9/10, http://mises.org/daily/4865 (Retrieved 4/12/12) Robert P. Murphy, Privatizing Air Security, Posted 12/6/10, http://mises.org/daily/4873 (Retrieved 4/12/12) n188 Id. n189 Mike M. Ahlers and Jeanne Meserve, CNN, TSA shuts door on private airport screening program, Posted 1/29/11, http://articles.cnn.com/2011-01-29/travel/tsa.private_1_tsagovernment-screeners-screening-program?_s=PM:TRAVEL (Retrieved 4/12/12) n190 Id. n191 Id. n192 Alan Levin, Bloomberg Businessweek, Aviation Policy Skirmishes End With U.S. Senate Passing FAA Bill, Posted 2/13/12, http://www.businessweek.com/news/2012-0213/aviation-policy-skirmishes-end-with-u-s-senate-passing-faa-bill.html (Retrieved 4/12/12) n193 Ron Nixon, The New York Times, 3/15/12, New Law Clears the Way for Airports to Drop T.S.A. Screeners, http://www.nytimes.com/2012/03/16/us/airports-with-new-laware-freer-to-split-from-tsa.html (Retrieved 4/12/12) n194 See generally: Andrea Stone, The Huffington Post, John Mica Attacks TSA 'Chat-Downs' As 'Idiotic,' Says Screening Failures Are 'Off The Charts' http://www.huffingtonpost.com/2011/10/24/john-mica-tsa_n_1028898.html KHOU.com, Travelers wonder how gun made it past TSA at IAH, http://www.khou.com/news/local/Travelers-wonder-how-gun-made-it-past-TSA-at-IAH-134166083.html Keoki Kerr, KITV4 News, At Least 27 Honolulu TSA Officers Under Probe, http://www.kitv.com/news/27048822/detail.html#ixzz1pJBDOUm5 Fox Charlotte, Charlotte TSA Fails to Detect Knife in Carry-On, http://www.foxcharlotte.com/news/local/Charlotte-TSA-Fails-to-Detect-Knife-in-CarryOn-133335723.html Aaron Diamant, wsbtv.com, Ch. 2 investigation exposes major security breach at Hartsfield-Jackson, http://www.wsbtv.com/news/news/ch-2-investigation-exposesmajor-security-breach-h/nFNpF/

KTLA News, Loaded Gun Falls Out of Checked Bags at LAX, http://www.ktla.com/news/landing/ktla-loaded-gun-found-in-bag-at-lax,0,7716332.story One man has claimed to get around the x-ray machines by keeping metal objects on the side of his body, which disappear into the background on the scan image. See TSA News,Passenger slips metal by TSA scanners repeatedly, http://tsanewsblog.com/1901/news/passenger-slips-metal-by-tsa-scanners-repeatedly/ In addition, Steve Moore, a commercial pilot and former FBI Special Agent, has suggested that the TSAs biggest weakness is its procedural predictability. See Steve Moore, TSA: Fail, http://gmancasefile.blogspot.com/2012/01/tsa-fail.html See also Christopher Elliot, Huffington Post, Are We Spending Too Much On The TSA? (VIDEO), http://www.huffingtonpost.com/christopher-elliott/are-we-spendingtoo-much-_b_1338588.html?ref=travel&icid=mainggrid7%7Cmain5%7Cdl21%7Csec1_lnk3%26pLid%3D142686 Politicians continue to speak out against the TSAs effectiveness: They said the TSA paid rent to keep faulty equipment in warehouses, even rushing to haul it away as congressional investigators were arriving. See Larry Margasak, Associated Press, USA Today, Lawmakers call airport screeners ineffective, rude, http://travel.usatoday.com/flights/story/2012-03-27/Lawmakers-call-airport-screenersineffective-rude/53798262/1; Associated Press, NPR, Lawmakers Call Airport Screeners Ineffective, Rude, http://www.npr.org/templates/story/story.php?storyId=149412099 n195 Id.

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n196 See supra n126. IS THERE A BETTER APPROACH TO OFFER IN THE INTERIM? LOOK AT GERMANY, ISRAEL & INFRARED TECHNOLOGY n197 The Federal Ministry of the Interior, Germany, Test of full-body scanners: Effective, but not yet ready for nation-wide rollout, Posted 9/2/11, http://www.bmi.bund.de/SharedDocs/Pressemitteilungen/EN/2011/09/body_scanner.html (Retrieved 4/12/12) n198 Id. n199 European Commission, Press Release, Aviation security: Commission adopts new rules on the use of security scanners at European airports, Released 11/14/11, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1343&format=HTML&a ged=0&language=EN&guiLanguage=en (Retrieved 4/12/12)

Meredeth Melnick, Time Magazine Healthland, Europe Bans Airport X-Ray Scanners. Should the U.S. Follow Suit? Posted 11/21/11, http://healthland.time.com/2011/11/21/europe-bans-airport-x-ray-scanners-should-the-us-follow-suit/#ixzz1lLeca3lX (Retrieved 4/12/12) n200 See Brian Palmer, Slate Magazine, What's So Great About Israeli Security? Posted 1/3/11, http://www.slate.com/articles/news_and_politics/explainer/2011/01/whats_so_great_abou t_israeli_security.html (Retrieved 4/12/12) Helene Cooper, STLToday.com, Some suggest U.S. look at Israeli airport screening methods, Posted 11/22/10, http://www.stltoday.com/news/national/govt-andpolitics/article_17b9b79e-f6a1-11df-b071-0017a4a78c22.html (Retrieved 4/12/12) n201 Mona Charon, National Review Online, Look for Terrorists, Not Weapons, http://www.nationalreview.com/articles/253746/look-terrorists-not-weapons-monacharen (Retrieved 4/12/12)

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n202 Id.; see also supra n200. n203 Id. n204 See an example how the U.S. can adopt these methods: Mike Riggs, Reason.com, TSA to Implement Israel-Style Airport Security Procedures, Posted 8/2/11, http://reason.com/blog/2011/08/02/tsa-to-implement-israel-style (Retrieved 4/12/12) n205 James Reynolds, BBC News, Posted 12/19/02, Air marshals: Lessons from Israel, http://news.bbc.co.uk/2/hi/middle_east/2592605.stm (Retrieved 4/12/12) David Kohn, CBS News, The Safest Airline, Posted 2/11/09, http://www.cbsnews.com/stories/2002/01/15/60II/main324476.shtml (Retrieved 4/12/12) n206 Id. n207 Id. n208 Id. n209 John Merchant, Mikron Instrument Company Inc., Omega.com, Infrared Temperature Measurement Theory and Application, http://www.omega.com/techref/iredtempmeasur.html (Retrieved 4/12/12) Healthscanonline.com, What is Infrared Full Body Imaging? http://www.thermographyonline.com/what-is-full.html (Retrieved 4/12/12)

n210 Id. n211 Ndtnews.com, FLIR infrared cameras help detect the spreading of swine flu and other viral diseases, Posted 6/18/09, http://www.ndtnews.org/News/News_Archive/June_2009/FLIR_infrared_cameras_help_ detect_the_spreading_of_swine_flu_and_other_viral_diseases.html (Retrieved 4/12/12) IMPLICATIONS OF A STRONG FOURTH AMENDMENT IN THE BROADER CONTEXT OF NATIONAL SECURITY

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n212 Claire Finlelstein, Jens David Ohlin, Andrew Altman, Targeted Killings: Law and Morality in an Asymmetrical World, Oxford University Press, 2012. Targeted Killings, Fernando R. Tesn pg. 404-433; 416. n213 See n152 at 59; 75. Tesn argues that preventing principled evildoers from carrying out massive attacks, such as opponents in WWII, may demonstrate the appropriate urgency to curtail some liberties for the greater whole of liberty. n214 See supra n212.

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n215 Id. at 423. n216 Id. n217 See 18 U.S.C. 371 : US Code - Section 371: Conspiracy to commit offense or to defraud United States. Available at http://codes.lp.findlaw.com/uscode/18/I/19/371 (Retrieved 4/12/12); See also 18 USC 1111 MURDER. Available at http://www.law.cornell.edu/uscode/text/18/1111(Retrieved 4/12/12) n218 See supran212 at 415-16.

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n219 See supra n176. n220 See the discussion supra on variables in calculating harm at: A PHILOSOPHICAL APPROACH TO THE TSA; n151-n196. n221 Tesn focuses on whether someone uses immoral means and is a principled evildoer to question if exceptions to Constitutional norms should apply. See supra n 212 at 418-19.

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n222 See generally: Todd Faulkner, Man threatens to blow up school bus, no students injured in incident, Written Mar 28, 2012, http://www.wpsdlocal6.com/news/local/Man-threatensto-blow-up-school-bus-no-students-injured-in-incident--144719315.html Rob Landreth, WSPA-TV, Ohio Man Arrested After Threatening To Blow Up Bus In Spartanburg, Published March 06, 2012, http://www2.wspa.com/news/2012/mar/06/4/i85-shut-down-due-report-bomb-bus-ar-3364447/ ABC News, Boy Busted in Samurai Busjack, Bomb Plot April 30, 2002, http://abcnews.go.com/US/story?id=91707&page=1#.T4SXE8gcgmQ n223 Take for example the Virginia Tech shooting where a deranged student, Seung-Hui Cho, murdered 32 people and committed suicide. See CBS Interactive Inc., At Least 33 Killed In Va. Tech Massacre, Posted 2/11/09, http://www.cbsnews.com/2100-201_1622686709.html (Retrieved 4/12/12); Or for example Ted Kaczynski, known as the Unabomber. His mail bombings, killing three and injuring others, was not a part of a grander scheme of terrorism but rather a plot his own anti-technology political ideology. See William Claiborne, Washington Post, FBI Gives Reward to Unabomber's Brother, Posted 8/21/98, http://www.washingtonpost.com/wpsrv/national/longterm/unabomber/trialstory.htm (Retrieved 4/12/12); Compare those instances of great harm but no labeled association to the 1993 World Trade Center Bombing which, while seeming to seek more harm, only ended up murdering 6 people at the hands of al-Qaeda. See Craig Whitlock, Washington Post Foreign Service, Homemade, Cheap and Dangerous: Terror Cells Favor Simple Ingredients In Building Bombs, Posted 7/5/07, http://www.washingtonpost.com/wpdyn/content/article/2007/07/04/AR2007070401814_pf.html (Retrieved 4/12/12) n224 See Federal Bureau of Investigation, Crime in the United States by Volume and Rate per 100,000 Inhabitants, 19912010, See http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2010/crime-in-the-u.s.-2010/tables/10tbl01.xls (Retrieved 4/12/12) n225 See generally Steven Wisotsky, Cato Policy Analysis No. 180, CATO Institute, A Society Of Suspects: The War on Drugs and Civil Liberties, Published 10/2/92, available at http://www.cato.org/pubs/pas/pa-180.html (Retrieved 4/12/12) Also see supra n152 at 423, Tesns disagrees as well with creating hit lists for drug lords and other criminals by calling them terrorists and using a just war mentality. n226 When a person is unlawfully detained, the remedy is exclusion of all the evidence derived "fruit of the poisonous tree." See Navamuel v. State, 12 So. 3d 1283, 1286 (Fla. Dist. Ct. App. 4th Dist. 2009); (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963))

A BRIEF COMMENT ON THE EXTENT OF PRIVITIZATION FOR NATIONAL SECURITY

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n227 Voluntaryist.com, http://www.voluntaryist.com/fundamentals/introduction.html, (Retrieved 4/12/12) n228 See for example NYs not-for-profit laws: New York State, Division of Corporations, State Records & UCC, http://www.dos.ny.gov/corps/nfpfaq.asp#special Retrieved: (4/10/12)

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n229 Stephen Moore, The American, Guess Who Really Pays the Taxes, November 2007, http://american.com/archive/2007/november-december-magazine-contents/guess-whoreally-pays-the-taxes Retrieved: 4/10/12 Also see Ben ONeill, Ludwig von Mises Institute, Solving the "Problem" of Free Riding, Posted 11/13/07, http://mises.org/daily/2769 (Retrieved 4/12/12) n230 Id. n231 Walmart Corporate, Community & Giving, http://walmartstores.com/communitygiving/ (Retrieved: 4/10/12) n232 The U.S. government has a monopoly on the postal service via U.S. Const. Art. I 8 Cl. 7 and a monopoly on coining money via U.S Const. Art.I 8. The U.S. Postal Service is facing bankruptcy. See Gus Lubin, Facing Bankruptcy, US Postal Service Plans Unprecedented Cuts To First Class Mail, Posted 12/5/11, http://articles.businessinsider.com/2011-12-05/news/30476320_1_distance-mail-mailprocessing-centers-first-class-mail#ixzz1rsshmPYb (Retrieved 4/12/12) THE FUTURE OF PRIVACY UNDER NATIONAL SECURITY DIRECTIVES MY PREDICTION n233 The future is looking more and more like a dystopian science-fiction novel. See George Webster, CNN, The future of airport security: Thermal lie-detectors and cloned sniffer dogs, Posted 11/25/11, http://www.cnn.com/2011/11/25/tech/innovation/future-airportsecurity/index.html (Retrieved 4/12/12) n234 Associated Press, USA Today, Family implanted with computer chips, Posted 5/10/01, http://www.usatoday.com/life/cyber/tech/2002/05/10/implantable-chip.htm (Retrieved 4/12/12)

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n235 Id. n236 Julia Scheeres, Wired Magazine, They Want Their ID Chips Now, Posted 2/6/02, http://www.wired.com/politics/security/news/2002/02/50187?currentPage=all Retrieved 4/12/12) n237 Mike Olson, Wired Magazine, 10 Best Uses for RFID Tags, Posted 2/3/09, http://www.wired.com/techbiz/it/magazine/17-03/st_best (Retrieved 4/12/12) Travel.State.Gov, U.S. Passport Card http://travel.state.gov/passport/ppt_card/ppt_card_3926.html (Retrieved 4/12/12) Stan Lehman, Associated Press, Locator chips keep track of students in Brazil, Posted 3/22/12, http://news.yahoo.com/locator-chips-keep-track-students-brazil-200836568.html (Retrieved 4/12/12) Joel Johnson, Popular Mechanics, RFID Credit Cards and Theft: Tech Clinic, Posted 10/1/09, http://www.popularmechanics.com/technology/how-to/4206464 (Retrieved 4/12/12)