TSA’s new Screening and a 2007 Court Ruling

Much has been written for and against the TSA’s new screening policies. We won’t wade into the battle here, because one point missed in the media frenzy — according to current legal case law, once you enter a “secured” area of an airport you’re essentially under Federal arrest as you may not leave the secured area without permission — even if you choose not to fly, as someone in San Diego found out the hard way after he decided he rather not fly than be subjected to the new enhanced procedures.

When we first found out the TSA refused to allow him to leave even if he wasn’t flying that sounded strange, but it turns out when he was told he “gave up his rights when he bought the ticket” is fairly close to the truth, as a little digging finds a 2007 Ninth Circuit Court of Appeals decision UNITED STATES v. AUKAI, in which they state:

The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, 92 S.Ct. 1593, and requiring 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. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport.

What’s a “secured area” of the airport? Not even the court knows as they say in the footnote “Hence, we do not speculate on how far such ’sterile’ and ’secured’ areas extend from the airplane boarding gate to the street door.” (you should read the entire UNITED STATES v. AUKAI ruling as it’s not very long).

We wonder how the founders would react to the court’s ruling.

If you love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that you were our countrymen. ~ Samuel Adams

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