The TSA Vs. The Fourth Amendment: You're Free To Board A Plane, But You're Not Free To Leave The Screening Area
from the exchanging-rights-for-so-called-'privileges' dept
We've often discussed the TSA's ridiculous pantomime deployed with the pretense that vague and ever-shifting rules -- most written as a reaction to previous failed attacks -- somehow make flying safer, even if these policies have failed to prevent attackers from boarding planes or even sniff out potential terrorists in order to apprehend them. The entire process has been ridiculed (as all knee-jerk responses should be) to no end, which is just as well considering the TSA program itself is apparently going to be endless.
While we've examined the security theater players' parts, we really haven't spent much time examining the stage itself. Over at the Volokh Conspiracy, David Post asks just how many of our rights are we supposed to give up for the illusion of safety?
I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said: ”Once you enter the screening area, you will not be permitted to leave without TSA permission.” Really?! Actually, I am permitted to leave without TSA permission, whether they like it or not, because the Fourth Amendment’s prohibition on “unreasonable . . . seizures” gives me that permission. We have a word for this, too, in the law, when government agents don’t allow us to leave freely: ”being in custody.” And the government cannot put me in custody when they have absolutely no reason to believe that I have broken the law – the 4th Amendment prohibits that. Nor can they say “you’ve consented to being in custody when you go to the airport,” any more than they can say “you’ve consented to being in custody whenever you leave your home, so we can grab you and hold you whenever we damn please.”Post's followup discussion with TSA agents didn't add much in the way of clarification. The agents told him that he wasn't free to leave but he certainly wasn't being detained. Not "in custody," but not allowed to exit the screening area -- just one of the many contradictions that defines the TSA's bureaucratic morass.
Orin Kerr has responded in another post, stating that whether or not the "seizure" is "unreasonable," caselaw backs up the TSA's position.
The “right to leave” argument was first litigated in the early 1970s when airport security screening was new. At the time, the Fifth Circuit clearly rejected the argument. See United States v. Skipwith, 482 F.2d 1272, 1277 (5th Cir. 1973). The Fifth Circuit reasoned that an alternative approach would give hijackers a way to probe for poor security practices and then only go through security when it was lax.The logic behind this opinion is mostly sound, but this is something that should be clarified by the agency relying on this caselaw. When someone asks whether or not they're being detained or are in custody, they should be told that they are -- even if said custody technically ends when they board their flight. This may make more people unhappy, but the TSA's never really been a people-friendly operation.
If there was ever going to be an opportunity to move caselaw to a bit more reasonable point in relation to consent, custody and security checkpoints, that door was slammed shut by the 9/11 attacks. From the Ninth Circuit decision concurring with the Fifth Circuit's 1970s decision:
[R]equiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists 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.In other words, extenuating circumstances, dating back to the 1970s, have turned an airplane ticket into a waiver of Fourth Amendment rights. While I appreciate the fact that restoring these rights would make it much easier for would-be attackers to probe for security holes, the same rationale makes anyone attempting (or asking) to leave the screening area instantly suspicious -- and subject to additional searches and screenings.
This aligns very much with the general law enforcement view on "reasonable suspicion" in terms of checkpoints and roadblocks. Any driver who turns down a side road or performs a U-turn in order to avoid a police checkpoint is presumed to be guilty of… something and therefore should be pursued and stopped. At no point is this driver ever in "custody," and yet, he or she isn't free to leave the area, even when the driver is several cars back in the line. This would seem to violate the Fourth Amendment as well, but courts in many states have determined that simply avoiding a checkpoint is, in itself, enough reasonable suspicion to allow officers to pull over the vehicle.
Other courts have argued that a legal maneuver to avoid a checkpoint is not enough to indicate reasonable suspicion, but the reality here (as lawyers caution) is that drivers avoiding a DUI checkpoint or other police roadblock should expect to be pulled over and questioned. In the end, the only practical difference between these two rulings is the admissibility of evidence in court. At the point where the Fourth Amendment should matter, it doesn't. It's only after the fact.
Although they aren't told explicitly, simply entering the screening area is giving consent to the TSA to search you and your belongings. Should you wish to revoke this consent, you would need to make that decision before reaching the screening area. Practically speaking, this means finding another way to reach your destination. There's no way to assert your rights and still board a plane, even if you haven't broken any laws and aren't planning to.
Caselaw (and some common sense) supports the TSA's claim that travelers are not free to leave the screening area. But the TSA should be honest about it, rather than simply expect all travelers to be perfectly fine with waiving their rights for the "privilege" of boarding a plane. And the courts should be wary of issuing more caselaw supporting the expansion of "constitution-free zones" to anywhere the TSA (or other government agencies) might be operating.
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Filed Under: 4th amendment, airports, free to leave, in custody, tsa
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It's ridiculous
They would not allow her to proceed, or otherwise leave without surrendering the knife.
They also never indicated that there were alternatives, such as shipping the item home, etc. - she found out about that after the fact.
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There's a problem with this reasoning
There are a number of issues here.
First, this reasoning presumes that cost is an issue. And for some terrorists, it probably is. But not all.
Second, it presumes that terrorists don't already know about "systematic vulnerabilities in airport security". I'm pretty sure that anyone who either (a) flies and thinks or (b) reads is fully aware of a number of such vulnerabilities. ("Existence of TSA checkpoint" is one of my personal favorites.)
Third, if we grant for the sake of argument that are terrorists who don't know, then they have a plethora of means by which to learn -- and the methodology implied here is one of the least effective therefore unlikely to be deployed. ("sit in overpriced airport restaurant at table behind TSA personnel airing personal gripes" is one. "socially engineer mostly-untrained TSA agent" is another. And of course there are always the Old Ways: bribery, blackmail, seduction, extortion. There's no reason to think that TSA personnel are any more immune to those than anybody else.)
There's more, but the point I'm trying to make is that the court is advocating for security-by-obscurity, and that never works. A much better approach would be to publish all the details, invite comment from security experts, and pay attention to what they say. Even if they're five years old. (Why, hello, Microsoft.)
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Re: There's a problem with this reasoning
"Too bad, and it was so... Wait. You can tell when you're about to be detected?"
"Yes, I can look at what they're doing and see whether it would be enough to detect my gun."
"Well, why not do that without the gun?"
"Because it doesn't do any good to get through security without a gun! Even if I found that security was lax, I'd be on the plane unarmed. Use your head!"
"But if you find that security is lax, then you can call me and I'll come through after you with the gun."
"Good heavens... My friend, I'll bet you're smarter than two panels of Circuit Court judges!"
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Re: Re: There's a problem with this reasoning
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Re: There's a problem with this reasoning
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There's a big difference
Whatever they want to call it, that fine indicates that you are being detained once screening has begun. It is also, in my personal view, the most objectionable part of a highly objectionable system. It means that you are a prisoner.
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probing for lax judges
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It's "unreasonable"
That said, I personally don't feel that it's reasonable but that is open to interpretation. If there was a sign, when entering that spelled out the TSA's assertions, there would probably be less objection to it.
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Re: It's "unreasonable"
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Re: probing for lax judges
You can be sure the government is working very hard to rectify that oversight.
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You got it slightly wrong.
Checking in for the flight and obtaining a boarding pass is pretty much your consent to all that comes after. If you check in and then fail to appear on a flight, you will certainly get checked out especially if you had checked luggage that you apparently tried to get on a flight without you.
For all the calling this security theater, it's pretty obvious that if you took away the TSA tomorrow and let people fly with anything, any time that you would see planes dropping out of the sky like flies. Terrorists don't want to steal something from you or hold hostages, they just blow the damn thing up and call it a day. Take away the TSA, and commercial aviation in the US is a dead player.
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Re: You got it slightly wrong.
That's a false dichotomy. Nobody is saying "TSA or nothing at all". How about get rid of the TSA and go back to the security process that was used prior to all this nonsense?
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Re: You got it slightly wrong.
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Re: You got it slightly wrong.
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Re: Re: You got it slightly wrong.
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Re: You got it slightly wrong.
Ah yes, I remember the days before the TSA started their 'Grope and Poke' security measures, when planes would have only the slimmest chance to make it to their destination un-exploded, and hijackings were a common occurrence...
Oh wait, no, my mistake, I'm thinking of some other reality, in this one the level of security we had before the terrorists won and the government starting sacrificing rights on the alter of 'National and Public security' was more than enough to keep the vast majority of planes from going off like fireworks in the sky, so the idea that the TSA is somehow the 'last line of defense' keeping planes from exploding left and right, just doesn't hold up.
Terrorists don't want to steal something from you or hold hostages, they just blow the damn thing up and call it a day.
So tell me, how exactly does forming massive groupings of people, for the purpose of 'security screenings' help that? If anything it seems to me such measures would make it easier for terrorists, as now they don't even have to make it through security, any security, to kill huge numbers of people.
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Re: Re: You got it slightly wrong.
wow, what a load of rubbish. I know it's sort of a Techdirt tradition to try to over state someone's point to make it seem stupid, but do you honestly believe anything you wrote?
The problem we face is similar to the nuclear genie. Once you know how to harness nuclear (for good or bad) you can't unlearn it. In the same manner, terrorists figured out that airport security before 2001 was a joke, and they used that to great effect. They proved conclusively that anyone could very easily end up in control of aircraft and hurt and kill so many in such a short period of time. We shall never forget it.
Since then, the genie has really gotten out of the bottle. Those who seek to harm others have learned that they don't need huge WMD to cause great harm, and they came to understand that they could carry that stuff onto a plane on their person in a hard to detect manner, and use that to cause great harm. The show bomber dude is a perfect example, he was a fuckup and couldn't do the duty, but he had enough on him to do serious harm and perhaps take that plane out of the sky.
how exactly does forming massive groupings of people, for the purpose of 'security screenings' help that?
It starts by making it harder to get weapons on board, and continues through not generally allowing enough materials on board to cause the issues. It involves checking things and checking ways that the terrorists have shown to use in the past, and keeping them from being viable and reliable vectors for attack.
As a side note, generally it has also managed to keep most guns, knives, and other day to day dangerous weapons off of commercial flights, making flying quite possibly the safest place to be in the US.
So reverse the question: If tomorrow the TSA stopped checking your person, stopped checking carry on bags (except for a cursor run though a metal detector) and let people carry on almost anything, would you feel safe to fly?
Do you remember what it was to fly before 2001? Do you remember what it was like when people could walk with you right to the gate, many without even passing any real security to do it? It's like sending you kid out now to ride a bike without a helmet, it might have been acceptable 40 years ago, but now we know better.
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Re: Re: Re: You got it slightly wrong.
A compromise will be prohibiting anyone carrying anything on his/her person. ANYTHING. So passengers will board the plane buck naked. There's ton of advantages of this rule:
1. Flying still an option for travel (see above)
2. The cost of security theater can be significantly reduced, as
3. Search & grope can be minimized
4. Scanner use can be minimized
5. Entertainment value all round, esp when boarding along with supermodels and/or various beautiful people
I'm amazed why this solution still hasn't enforced yet.
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Re: Re: Re: You got it slightly wrong.
I would, because I don't see any evidence that all this no-liquids-take-off-your-shoes-nude-scanner stuff is actually stopping anything. And it's been proven that it's still quite possible, perhaps even easy, to get weapons past security. And security issues on planes before 9/11 were a microscopically tiny problem. The only reason people are so freaked out about it now is because 9/11 was so horrible, not because it's so much more likely now. Reinforce and lock the cockpit door, use air marshals and metal detectors, and leave it at that.
Do you remember what it was like when people could walk with you right to the gate
Yeah, that was nice. Too bad we won't ever see that again. Remember how people could walk their kid to the gate, and grandma and grandpa could pick them up at the gate at the other end? No more of that.
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Re: Re: Re: You got it slightly wrong.
Locking the cockpit door. The point of a hijack is to wrest control of the plane, not to kill the people on the airplane (that's just a bonus - they're going for psychological impact or far more significant kill-count).
If they wish to kill the number of people on a plane, it's easier (and more effective) to bomb, say... a busy mall. A school. A hotel.
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Airline Passengers Defend the Plane
T - Terrorist
S - Searching
A - Americans
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Re: Airline Passengers Defend the Plane
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Re: You got it slightly wrong.
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Re: Re: You got it slightly wrong.
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Re: Re: You got it slightly wrong.
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Re: Re: You got it slightly wrong.
No, darlin', it's time to lighten up on the completely irrational belief that there's a terrorist hiding around every corner.
If you think bullying, robbing, humiliation, and sexual assault are "minor inconveniences," there's something seriously wrong with you.
And point of logic: in all the years before October 30, 2010, when the Reign of Molestation was implemented, why weren't planes being blown out of the sky left and right? After all, you say the risk of "screaming as your burnt and battered body is falling in thin air from 30,000 feet" is so high. So where were all the terrorist attacks in all those years before the scanners and gropes were implemented? And where are all the attacks at the hundreds of thousands of non-TSA-protected places??
TSA apologists never want to answer these questions.
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Why? It's quite clear that the US government would like to make the entire country a Constitution-free zone.
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I also agree with the many people who believe the tsa has a whole is mostly a failure and waste of money. We need security screening at airports, whether it be by private or government personnel. But the current model is ineffective, inefficient, incompetent, and needs to go.
Instead of adding more money and more personnel to the tsa, we need to focus on revamping the system and devolping one that focuses on safety and security, while being efficient and effective.
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- John Adams
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Re:
some sort of, of, of REVOLUTIONARY ? ? ?
off to the gulag with you, nutjob...
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Not sure I understand
Indeed you just follow the deplaning passengers (from domestic flights) and away you go.
If you are suggesting that once you enter the screening area you should not be allowed to leave until processed - well, that sounds like a reasonable requirement, that you consented to by entering the search area with a boarding pass. Once the screening is complete, you are free to go.
After all, once you board the plane, you are not free to go either. Once the light comes on you are not free to leave your seat. Life is full of one-way streets.
I hate to agree with the TSA and its silly theatre, but I don't see this as an onerous burden.
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Yes, you can leave the checkpoint of your own free will
She writes for us at TSA News, where I'm the editor. I've the put the URL to one of her posts in the link at my name. Click on it, and you'll get to her essay about walking away from the airport goons.
There are many ways to fight back against this abusive agency, and we should be using all of them.
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TSA
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TSA SEarch
rear end than normal. I am very upset and caused a scene. The supervisor told me that was normal protocol. I need advice on filing a true sexual assault charge on the agent and his supervisor. The sad thing is I left without getting their names. I am just an average white male not Mohammad or Muslim. This has humiliated me beyond bad. I am shaken up by the ordeal. Can someone please give me guidance. I not only want to file charges but would be open to a true lawsuit. Can someone help me.
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Re: TSA SEarch
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Re: Re: TSA SEarch
That assumes that the security actually works, but it doesn't. We're getting violated for no good reason.
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Addon
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otis livingston is crime
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