united-states international constitutional-law air-travel
Airport Security - advanced check, 4th amendment breach
<p>I am a traveller, have a long Muslim name and I encounter frequent advanced searches at airports. Searching someone based solely on their name is obviously illegal as per the 4th amendment, but I assume bigotry exists so I learned to deal with it. However, what follows is a special case.</p>

<p>Let us say I wanted to go from airport A to airport C, and I need to transfer flights along this journey at airport B. Airport B decided to do an advanced search, causing me to miss my flight to airport C since the advanced search had taken too much time.</p>

<p>Is this a breach of the 4th amendment? Since the advanced search would be considered unreasonable in this scenario as it caused me to miss a flight, and the only justification that airport security could provide for the search was my name which is already illegal. Surely in this case airport security would be obligated to skip an advanced search on me since I have another flight shortly, but they decided not to; the only confounding variable that could have caused this was my <em>name</em>.</p>

<p><em>This is specific to the United States.</em></p>

<p>The 4th amendment is irrelevant because you <a href="https://en.wikibooks.org/wiki/US_Criminal_Law/Search_and_seizure/Without_a_warrant" rel="noreferrer">consented</a> to being searched as a condition of passing through security - you don’t <em>have</em> to fly. You cannot revoke that consent once x-ray screening or metal detection has commenced i.e. once your bags are checked, your hand luggage is in the scanner or you have entered the metal detector.</p>

<p>The relevant issue is whether there has been a violation of the 14th amendment requiring equal treatment. If the ethnicity of your name is the <em>sole</em> reason you were selected for advanced screening then that is clearly a violation of this. However, if it is only one factor among several then it isn’t.</p>

<p>However, the problem is that TSA agents are not required to articulate their reasons for selecting you (or anyone else) and indeed, they do not have to have a reason. Therefore it is almost impossible to prove that this has happened. Several cases in the wider “policing” regime have suggested that even if statistically certain groups are disproportionately targeted then that is not evidence of such targeting in a particular case.</p>

<p>Further it is not clear if you would even have standing to sue - to prevent this kind of discrimination you have to show that you <em>personally</em> at risk of harm in the future.</p>

<p>Clearly this state of affairs is problematical - there is little doubt that airport screening, not just in the USA but worldwide is tainted by this sort of bias. The data shows it as well as plenty of anecdotal evidence - I’m 1st generation Australian with UK and Australian parents, my son’s girlfriend is 2nd generation but her grandparents were Thai: she gets stopped way more than I do.</p>

<p>This is bad not just because it’s antithetical to human rights but also because it is demonstrably less effective than purely random screening - where there is bias, that bias can be gamed. <a href="https://thepointsguy.com/2015/06/does-tsa-screening-really-work/" rel="noreferrer">This</a> article from a TSA employee states "Behavior Detection Officers (the guys who walk around and watch to see if you look creepy) are useless, and there are widespread rumors within TSA that the BDO program won’t be around for much longer." "The guys" are people and, like all of us, are subject to overt and subconscious bias in deciding what "look[s] creepy".</p>

<p>Notwithstanding, security is never “obliged” to “skip” a search even if the reason for that search is arguably illegitimate. You made the travel arrangements and you take the risk that you will not have enough time between flights for this or any other reason.</p>

<p>You have it backwards.  The duty is yours, not to book connections that are too tight.  (Or the airline if they book the itinerary). </p>

<p>If you book a connection so tight that you have to be OJ Simpson (back when he was famous for running through airports), <strong><em>TSA is not obliged to help you pull that off</em></strong>.  <em>In fact, think about it.  If I was a terrorist trying to sneak something through, I would intentionally book a tight connection so I could argue that TSA must not delay me with a thorough search.  So no, that "pass me over, I'm late" argument can't possibly work</em>. </p>

<p>You said it yourself, TSA delays are foreseeable.  That means you have a duty to <strong>mitigate damages</strong>, i.e. Not create a situation where loss will be likely from stuff that happens normally.  </p>

<p>"But TSA pulls me out of the line way too often" -- that argument may have merit on its own.  However your case doesn't turn on the discrimination, it turns on the delay. Was the delay so extraordinary  that the knock-on effects are TSA's fault? That doesn't work if your TSA delay is within the stated limits they normally claim on their website etc. That is, if their standard advice is "figure 2 hours for TSA" and you miss your plane because you failed to allocate 2 hours for TSA, then it doesn't matter if TSA usually takes 5 minutes.  They don't owe you 5 minutes merely because it usually takes that. </p>

<p>Regardless of this, <strong>if the airline booked your itinerary for you on a single ticket, they are responsible for getting you to your destination</strong>, and the costs of TSA, immigration etc. delays are on them.  So again you have no cause of action against TSA since the airline protects you from loss there.   I suppose you could argue that your <em>time</em> has value, but you'd never successfully seat a jury who would consider airport delays extraordinary.  </p>

<p>If you booked separate flight segments independently, <strong>then it's all on you to make that connection work</strong>.  Booking a tight connection is a newbie mistake. When that fails, you must work it out with the onward airline, but prepare to pay!   If you say "I am going to be homeless at airport B" because you can't pay, that's because you don't have enough money to be an effective traveler. Immigration at B should have refused you and sent you home at airline expense, for that reason.  You are not allowed to visit a foreign country and then rely on social services (the dole) or seek employ, and they aim to enforce that by seeing that you have spare money back for emergencies. </p>

<p>The US does not have transit zones like Dubai or Schiphol. If the USA is a hop on a journey between two other countries, you must have a USA transit visa (or VWP) and you must be admitted to the USA through immigration.  If this is news to you, that's just bad planning.  </p>

<p>If this excessive examination and delay you speak of was an immigration matter and not TSA, then they have wide latitude to do as they please.  Precious few rights apply at the immigraiton desk, and they don't owe you anything befause you are asking permission to visit the country.  Admission of foreigners is not a right.  Queen Elizabeth doesn't have a <em>right</em> to visit the US, for instance. (Canada, yes).  </p>

<blockquote>
  <p>Searching someone based solely on their name is obviously illegal as
  per the 4th amendment...I need to transfer flights along this journey
  at airport B. Airport B decided to do an advanced search [presumably
  because of your name], causing me to miss my flight to airport C since
  the advanced search had taken too much time. Is this a breach of the
  4th amendment?</p>
</blockquote>

<p>The only thing that you have added with this scenario is that you missed a flight. That pertains to the question of damages that you might be awarded. The 4th Amendment does not say "but only if you miss your flight". If the <em>only</em> basis for an advanced search is a national origin or religion assumption based on your name, that would not be a legal search.</p>

<p>It is claimed in other answers that consent sweeps away the 4th Amendment. The 4th Amendment does not say that consent creates an exception to the 4th. <a href="https://law.justia.com/cases/federal/appellate-courts/F3/436/174/593682/" rel="noreferrer">US v. Hartwell</a>, 436 F.3d 174 points out that the courts are divided on the consent-based rationale, see <a href="https://casetext.com/case/united-states-v-henry-22" rel="noreferrer">US v. Henry</a>, 615 F.2d 1223 in favor, <a href="https://openjurist.org/495/f2d/799/united-states-v-albarado" rel="noreferrer">US v. Albarado</a>, 495 F.2d 799 against ("To make one choose between flying to one's destination and exercising one's constitutional right appears to us, as to the Eighth Circuit, United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973), in many situations a form of coercion, however subtle"). The Hartwell court notes that "consent theories are 'basically unsound' in the airport context because screening systems rarely meet the requirements for express consent under <a href="https://openjurist.org/412/us/218" rel="noreferrer">Schneckloth v. Bustamonte</a>, 412 US 218". Rather, airport searches fall under the <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2435&amp;context=articles" rel="noreferrer">administrative search doctrine</a> (<a href="https://openjurist.org/410/f3d/612/united-states-v-marquez" rel="noreferrer">United States v. Marquez</a>, 410 F.3d 612). That case noted (citations suppressed) that</p>

<blockquote>
  <p>airport screenings are considered to be administrative searches
  because they are "conducted as part of a general regulatory scheme"
  where the essential administrative purpose is "to prevent the carrying
  of weapons or explosives aboard aircraft"). Thus, airport screenings
  must be reasonable. To judge reasonableness, it is necessary to
  balance the right to be free of intrusion with "society's interest in
  safe air travel".</p>
</blockquote>

<p>Therefore, there must still be a balance between the governmental interest which motivates the search vs. the intrusion on the individual's privacy: the search must still be reasonable. The courts have not clearly ruled on what the limit of reasonableness is for airport searches. They have not ruled that there is no limit. </p>

<p>Hartwell reiterates that</p>

<blockquote>
  <p>Suspicionless checkpoint searches are permissible under the Fourth
  Amendment when a court finds a favorable balance between "the gravity
  of the public concerns served by the seizure, the degree to which the
  seizure advances the public interest, and the severity of the
  interference with individual liberty"</p>
</blockquote>

<p>What is important for this and all analogous cases of airport searches is that</p>

<blockquote>
  <p>the procedures involved in Hartwell's search were minimally intrusive.
  They were well-tailored to protect personal privacy, escalating in
  invasiveness only after a lower level of screening disclosed a reason
  to conduct a more probing search.</p>
</blockquote>

<p>There were multiple reasons for a more intrusive search in Hartwell; there were multiple reasons for a more intrusive search (and seizure) in <a href="http://www2.ca3.uscourts.gov/opinarch/114292p.pdf" rel="noreferrer">George v. Rehiel</a>. There has been no ruling that race or Arabic / Muslim name <em>alone</em> constitutes sufficient reason for an administrative search, and it is highly unlikely that there ever will be (as a suspect classification). </p>

<p>The fourth amendment does not apply to TSA searches.  Passengers consent to the search as a condition of being allowed to enter the secure area of the airport and to board the plane.  A search done with consent does not violate the fourth amendment.</p>

<p>I do not know whether you have some other cause of action here, but whatever it may be, it does not involve the fourth amendment.</p>
