TSA vs. 4th Amendment: You’re Free To Board A Plane, But You’re Not Free To Leave The Screening Area

Tim Cushing
Tech Dirt

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,” case-law 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 case-law. 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.