According to a TSA supervisor (surely the story is well known enough I don’t need to link), “by buying your ticket you [give] up a lot of rights.” I read it as an implied smackdown against the traveller who protests against what s/he sees as unreasonable search and seizure (4th amendment).
But I have two questions:
(1) Is it really possible to give up your rights as a citizen? I mean, you can waive your rights, e.g., if you choose to blab to the po-pos, but your fundamental right to remain silent and not testify against yourself is never in question AFAIK, and you can stop blabbing and ask for a lawyer at any point. Or am I mistaken, or is this semantic distinction too trivial?
And (2) if you do indeed give up your fourth amendment right against unreasonable searches and seizures, is there any reason this principle couldn’t be extended to rights covered by other amendments? In the pre-boarding process, being required to answer questions about your associations, for example, or being singled out for your stated or reputed political views, or your religion.* Quartering troops in your home, whatever.
Seriously, if there’s a difference, where is it?
*(All of which could be viewed as pertinent in assessing your threat to the aircraft you’re about to board, so pls don’t try hand waving with “oh, why would they ever do that?”)
And before somebody says “border search exception”: flying from (say) Dallas to De Moines is entirely within US borders, but you gotta go through the scanner or get your package prodded nonetheless, I believe.
Buying an airline ticket, like applying for a driver’s license, implies consent to certain things that can’t be done without consent. While I think the current airport search policies are idiotic and pointless, I have absolutely no doubt that it’s all legal.
The thing that gets to me about some of these stories is that consent is reversible; if I’m not mistaken, withdrawal of consent without prejudice is part of American law. Sure, you can’t get on the plane and have to leave the area, but the one case where the traveler was not allowed to leave – that strikes me as being illegal.
So, (1) yes, that’s a meaningless semantic distinction – or rather it isn’t, but the situation described is a waiver, not “giving up rights.” (2), yes, you can waive any rights you enjoy; if, as a condition of receiving some benefit from the government, you agree to quarter soldiers in your home, then the government has a right to deny you that benefit when you send the soldiers packing. They may even send the soldiers in, heedless of your protests, if the benefit has already been provided. What I think they can’t do is insist on carrying out the terms if you reject all the terms.
Hmmm . . . but applying for a driver’s license is a transaction between myself and an agency of the state. Purchasing a commercial airline ticket is a private transaction between myself and (most likely) a travel agency, where the state is a third party. It’s not an example of me “receiving some benefit from the government,” is it?
Sloppy phrasing. You do not give up your rights, you waive them. It happens all the time, and most of the time no no cares. Ever been pulled over for speeding and the cop asks if you know how fast you were going? If you answered, you waived your first amendment rights. If you said ‘Well, I know I was going a little over the limit but…’ then you waived your 5th amendment rights. If the cop asked to see what was in your trunk and you showed him, you waived your 4th amendment rights. If you decided to pay the ticket without going to court, you waived your 6th amendment rights. Considering a simple 15 minute traffic stop can have you waive over 1/3 the Bill of Rights, and no one complains, obviously the problem isn’t that the government asks citizens to waive their rights sometimes.
In regards to how far this can go, it’s a balancing act. Courts usually try to weigh the benefit the government gains vs the citizens desire to not waive their rights. For the most part, the courts have a strong tendency towards the citizens too, so generally there has to be a pretty large and direct benefit to be ok. If the government goes too far, the courts will bitchslap them. Does the current rules go too far? I dunno. The lawsuits on it are just starting. However, I expect the issue will be resolved politically by elected representatives long before there is a judicial solution.
Long post short, the TSA isn’t bad because they ask citizens to waive their rights. Instead, the TSA is bad because they go vastly overboard with it.
fair enough, but seems to me it’s all begging the question posed in my OP: in buying a ticket, could one conceivably be required to waive (if you prefer) protections offered by the first, fifth or fourteenth amendments? Or is it limited to the fourth amendment for some reason?
If one can be required to waive protection against unreasonable searches and seizures as a precondition of boarding an aircraft, why can’t one be required to give up protections of equal protection under the law, or protections that one person’s religion won’t get preferential treatment over another’s?
What about the $10,000 fee for not being searched that gets talked about?
As in terms of waiving rights. Generally in terms of dealing with police, for example, it is made very clear before you waive rights. Very, very clear. How clear is the waiving of rights by buying the ticket?
I’m not convinced the security is part of the contract between the passenger and the airline. It seems more like a restriction placed by the government, on both the airlines and the passengers. I’m guessing security procedures are very well publicised. Good luck with arguing, when you get to the airport, that you’d like your money back from the airline because you didn’t realise there would be government imposed security at the airport.
The question of waiving equal protection rights when submitting to a government obligation seems possible, though unlikely to arise. In a contractual situation, I think the restriction would be that you can’t ask the other party to waive their equal protection rights, so the question of voluntary waiver wouldn’t arise.
Aren’t these rights more to do with interaction with the state anyway? If I go to a theatre, then I am obliged to keep quiet or get thrown out, but I don’t think that counts as waiving rights to free speech?
When you buy a concert ticket you may be granting the venue the right to search you. Like with an airline, you can always choose not to attend the concert.
I can see how these statutory (not constitutional) limits would prevent the airline from discriminating on any of these bases. But does it apply to the government itself? And even if it does, what’s to prevent the government from saying “except in this case,” as it does for ostensible 4th amendment protections?
If you get to the head of the line at Madison Square Garden and don’t consent to a strip search and wish to tear up your ticket and go home, can they fine you $10,000?
The case law, as I understand it, is US v. Davis, 9th Circuit, 1973. In short (as this non-lawyer understands it), an administrative (non-law enforcement) search does not require a warrant and must be as minimal as necessary to accomplish the purpose.
There is a LOT of debate this month on whether the current TSA administrative searches exceed “minimal as necessary.”
Here is a 2007 ruling from the Ninth Circuit, overruling any previous cases discussing air travel searches in terms of implied consent, and confirming that they are properly considered administrative searches. You are not waiving your fourth amendment rights; rather, the fourth amendment is not a bar to these searches because they are not unreasonable.
This is not a blanket endorsement of all search techniques. Quoting Davis, the court held that “a particular airport security screening search is constitutionally reasonable provided that it is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives and that it is confined in good faith to that purpose.”
Also, the court noted that because implied consent is no longer at issue, it is permissible for TSA to forbid a traveler to leave after refusing to submit to a search. To do otherwise, according to the court, would allow criminals to make dry runs at testing security weaknesses.
Oh, god. Please tell me somebody is appealing that abomination. On the face of it, this may seem reasonable – an administrative search is “an inspection or search carried out under a regulatory or statutory scheme esp. in public or commercial premises and usually to enforce compliance with regulations or laws pertaining to health, safety, or security” – but one of the fundamental principles of administrative searches is that the government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations.
The U.S. Supreme Court has held (Camara v. Municipal Court, 1967), that a reasonable administrative search may be conducted upon a showing of probable cause which is less stringent than that required for a search incident to a criminal investigation. The Court stated that the reasonableness of the search can only be determined by “balancing the need to search against the invasion which the search entails.” Cases following Camara have stated that the probable cause requirement is fulfilled by showing that the search meets reasonable administrative standards established in a nonarbitrary regulatory scheme. What’s non-arbitrary about randomly diverting passengers to a more intrusive search regimen? Yes, theoretically the more intrusive search is the standard, and it’s only convenience that prevents every search from going that far, but…
The reason that administrative searches are allowed under the fourth amendment *is *implied consent; by engaging in certain closely regulated activities, you implicitly consent to be searched for violations of those regulations. Voluntarily withdrawing from the activity withdraws that consent – AIUI, without prejudice. TSA already stretches that concept to the breaking point: effecting different levels of search without specific cause divorces consent from its object. Making toiletries, shoes, and underwear the focus of the search divorces the objective – safety – from its implementation. Holding and penalizing travelers for withdrawing consent divorces the entire procedure from the need that compels it.
Don’t misunderstand me – I have no personal objection to the scanners, and I’ll willingly submit to getting felt up through my pants if it means I get through the line faster. But I don’t like the way the TSA, its powers, its practices, and its rationale, are becoming more arbitrary and more encompassing without due consideration of how they were justified in the first place.