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How far should privacy protections go?

By Scott Tibbs, December 8, 2009

The National Football League's policy of searching fans entering games is heading to the state supreme court in California, as a fan unhappy with the policy is challenging its legality. The case has been winding through the courts since 2005, and the persistent fan has re-filed after the case was thrown out. Does he have a legitimate complaint?

(Note: This post is not about California state law, nor is it intended to be. This is intended to be a philosophical examination of the policy and of the rights of consumers vs. business.)

The NFL argues that Daniel Sheehan consented to a search of his person when he purchased season tickets. This isn't the first time that argument has been used, and Sheehan's lawsuit was thrown out in 2006 when the courts decided that he knew about the search policy by then.

First, the NFL would have a stronger stance if it required those buying tickets (whether for the season or for an individual game) to sign an agreement consenting to a search of their person and belongings as a condition of attending the games. Those who refuse to sign the contract would then be prohibited from buying a ticket. A contract granting explicit permission to be searched would be more legally defensible, would be a welcome step to transparency regarding the policy, and would remove any arguments about whether someone "implicitly" consented to a search or not.

This lawsuit places the NFL is somewhat of a catch-22. They are being sued for the searches, but what would happen in the event of a terrorist attack or violent crime? The NFL could face significant liability in the event that a weapon smuggled into a game was used to injure a fan, player, official or stadium worker. After a Fort Wayne man was shot in the temple and blinded during a 2002 robbery of a Days Inn, he sued the hotel's owners for providing insufficient security and won a $2 million settlement a few years later.

Obviously, the NFL has both he right and legal obligation to ensure that its fans, players, officials and stadium employees are safe and the NFL therefore has a right to take reasonable steps to ensure that safety. No one is forced to attend a football game if they object to the searches, and the NFL is also not the government. If the searches were mandated and/or conducted by government, I would have more concerns regarding civil liberties. The California Supreme Court should allow the NFL to conduct the searches, and the fans have a choice whether to be searched or not when they made the decision to buy tickets.