Police officers, judges, and others integral to law enforcement are endowed with special authority to execute the law given their abilities and qualifications. These officials are chosen, in part, for their abilities and judgment to enforce the law and not to abuse their powers.

TSA officials, however, do not necessarily share the same qualifications or higher standards and so they should not share the same privileges. To allow them to be the arbiters of justice and security and to endow them with wide-ranging, privacy infringing powers is unacceptable. If a member of law enforcement has probable cause and obtains a warrant from a judge, then I do not question his ability to confiscate or search a laptop or other items. But even if a member of airport security just has no better reason beyond a gut feeling about someone traveling by plane, he has no right to confiscate or search any electronic device, extensions in this digital age of our own personal spaces; US v. Arnold and Homeland Security, however, seemingly grant them this power which so clearly violate Fourth Amendment privacy in the face of security. From a Bill of Rights context, to allow a single individual’s right to privacy be so easily violated by someone whose not been chosen for his judgment and with artificially-granted authorities puts civil liberties in jeopardy. In addition, total body scanners grants them even more invasive tools to use at their untested discretion; abuses are not only likely, they have happened.

Brennan’s dissent in United States v. Montoya better elucidates this point; reasonable suspicion may entitle an official for a brief terry stop, but he must immediately try notifying a judge for permission - during the entire retelling of Montoya’s holding, I saw little reason why none of them sought counsel from a judge. Ultimately, the Fourth Amendment does not afford the TSA and border officials the right to be both judge and enforcer upon people. In drawing a line between national security and Fourth Amendment privacy interests at the border, I think a balance is struck when we hold onto previously held standards - of needing probable cause and a warrant to conduct a search of a person and his possessions - terrorism does not necessarily fundamentally change the game.

But the example of the failed Nigerian bomb threat shows that the sharing of legitimately-attained information among agencies with the same jurisdiction, authority, and purpose is necessary and acceptable under Fourth Amendment terms. For example, allowing the NSA, CIA, and FBI - organizations which I think have similar jurisdiction and purposes - to share and access each other’s information (but not offering this information to some other unrelated federal branch or some smaller state or city) would be a boon for productivity as they are organizations dedicated to national security issues and would not infringe on Fourth Amendment rights. This information sharing is acceptable assuming the information they share are reasonably obtained; NSA mass surveillance does not fall under this category. Though secret surveillance may not necessarily prevent people from exploring exploring new ventures, as was my issue against surveillance as discussed in previous weeks, I think that the fact remains that NSA has not provided any reason they are entitled to this information beyond threats to security; national security is of paramount importance, but I think that using this faceless, omnipresent threat is a valid reason to throw out well-established and well-reasoned precedents for needing warrants and probable cause to break into someone’s privacy.