Page 146 - Privacy in a Cyber Age Policy and Practice

134 PRIVACY IN A CYBER AGE

is small, “administrative searches”—searches that are executed without a
warrant or probable cause—are legal and necessary. 91
One important subset of administrative searches is the “dragnet” search,
in which some agent of the government “searches or seizes every person,
place, or thing in a specific location or involved in a specific activity based
92
only on a showing of a generalized government interest.” They include
checkpoints where drivers are stopped for the purposes of investigating a
94
93
crime, sobriety checkpoints, and airport screenings. 95
In Camara v. Municipal Court the Court held that routine government
inspections of homes to ensure they were in compliance with the hous-
ing code were permissible, despite the fact that the searches covered every
house in a particular area without any sort of particularized suspicion. 96
In Michigan Department of State Police v. Sitz, the Court approved of
a sobriety checkpoint at which every vehicle was stopped (drivers demon-
strating visible signs of impairment were pulled aside for further screening),
on the grounds that the state has a strong interest in curbing drunk driving
97
and that the degree of intrusion involved in a brief traffic stop is minor.
The Court held that, given the short duration of the stop and the minimal
intensity of the search, the fact that the stops furthered the interests of the
state rendered the searches reasonable under the Fourth Amendment. 98
In Illinois v. Lidster, the Court held that a traffic stop for the purposes
of investigating a recent hit-and-run accident was permissible, because the
Court found a favorable balance between “the gravity of the public concerns
served by the seizure, the degree to which the seizure advances the public
interest, and the severity of the interference with individual liberty.” 99
And in United States v. Hartwell, the Third Circuit Court of Appeals
held that TSA screenings, despite lacking individualized suspicion and
being conducted without warrants, are permissible because they further a
key state interest in a way that is tailored to furthering that interest while
also being minimally invasive. According to the court, “preventing terror-
ist attacks on airplanes is of paramount importance,” and thus, given the
empirical evidence, screening checkpoints “advance the public interest”
in a way that no measure relying upon individualized suspicion could. 100
At the same time, the court held that, in addition to protecting the pub-
lic, the searches were “minimally intrusive” because the procedures used
“were well-tailored to protect personal privacy, escalating in invasiveness
only after a lower level of screening disclosed a reason to conduct a more
probing search. The search began when Hartwell simply passed through a
magnetometer and had his bag x-rayed, two screenings that involved no
physical touching.” 101 (TSA screening was also upheld on similar grounds
in previous rulings, most notably United States v. Davis 102 and United States
v. Pulido-Baquerizo. 103 )