Having just returned from a 1.5-week, three-conference trip, I am having my now-usual visceral reaction to the thought of another airport experience — nausea, which I hope diminishes by the time of my next trip in early August. Thus I’m in violent (irony intended) agreement with a post on Bruce Schneier’s blog today entitled “fixing airport security“, which I recommend reading. Schneier reiterates what we all realize by now: “Airport security is more about CYA than anything else: defending against what the terrorists did last time.”
But he also delves into another aspect that is well worth our attention — the lack of transparency with respect to traveler rules, rights, and responsibilities is due to what I would call the murky legal status of airport security, and the effect of this on both traveling citizens and visitors to the US:
Let’s start with the no-fly and watch lists. Right now, everything about them is secret: You can’t find out if you’re on one, or who put you there and why, and you can’t clear your name if you’re innocent. This Kafkaesque scenario is so un-American it’s embarrassing. Obama should make the no-fly list subject to judicial review.
Then, move on to the checkpoints themselves. What are our rights? What powers do the TSA officers have? If we’re asked “friendly” questions by behavioral detection officers, are we allowed not to answer? If we object to the rough handling of ourselves or our belongings, can the TSA official retaliate against us by putting us on a watch list? Obama should make the rules clear and explicit, and allow people to bring legal action against the TSA for violating those rules; otherwise, airport checkpoints will remain a Constitution-free zone in our country. …
The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that.
Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.
Unfortunately, the line is blurry between security-enhancing search encompassed within “implied consent” and unreasonable search that borders on harassment and does little to enhance security and reduce terrorist threats. Injecting some transparency and creating procedures that limit the rights of the TSA and enable individuals to query and challenge the TSA would create some much-needed accountability, and would make airports less of a police state than they currently are.