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Violation of Privacy or Protection of Citizens?

Being free from unreasonable searches and seizures has always been viewed as part of a fundamental right in our society.  Airport security has always been under strict scrutiny with regards to requiring identification and the search of an individual’s personal items. Should Americans feel that this is a privacy invasion or merely a less intrusive way to protect our nation?  The intrusion into American’s privacy through the searches of their bodies and their personal property has been argued since the 1960’s and has not been very successful. The Fourth Amendment of the United States Constitution states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 

An airport screening must be found as reasonable under the Fourth Amendment, which can be determined by a three-prong test.  United States v. Davis, 482 F.2d 893, 904 (9th Cir. 1973). The search must not be more extensive than necessary, it must be conducted in good faith, and passengers may always have the ability to elect not to fly. Id. at 913. While the Constitution does state that individuals have a fundamental right to interstate travel, it does not guarantee the right to travel by any particular form of transportation. See Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006). With the right to travel by any specific way not being guaranteed, airports have the ability to screen what baggage will be carried among their airliners. In light of the rise in terrorist attacks, airlines reasonably want to protect their employees and customers.

The right to warrantless searches has been deemed unconstitutional unless there is probable cause as stated in the Fourth Amendment.  In the case of airport security searches, individuals are not being forced to consent to the search of their person and property. Rather, individuals have the right to deny the search and elect not to travel through that airport.  Also, if individuals decide to not consent to the search, they will be unwelcome to travel through airline transportation. The government is not forcing individuals to submit to warrantless searches, but the individuals are consenting to submit to them.  If an individual chooses to travel, they can do so through other means.

If an individual refuses the right to be searched, they have the ability to not board the aircraft and leave the premises. These individuals will not be detained for a simple refusal to submit to the security checks. Once an individual chooses to proceed in the screening process, s/he has given their consent to the search.  In prior precedent, it has been proven that the right to travel by aircraft is a privilege, not a right. While passengers have the right to elect not to board the aircraft, the government has also prescribed the right to refuse transportation to individuals unless they have refused to consent to a search.  49 U.S.C.S. § 44902.

The government is not attempting to invade individual’s privacy; they are merely conducting a general regulatory scheme. “The only purpose for which the general search or inspection of persons and their property shall be undertaken is to ensure that dangerous weapons will not be unlawfully carried in air transportation or in intrastate air commerce.” S. Rep. No. 93-13, 93d Cong., 1st Sess., at 10 (1973).  If individuals are specifically being searched for evidence of a crime not pertaining to this general airport search, the evidence will be excluded. Abel v. United States, 362 U.S. 217, 229 (1960).  With the idea of freedom comes the idea of less privacy. Blanketless searches may become more common in attempts to deter and detect terroristic activities. Chandler v. Miller, 520 U.S. 305, 323, 137 L. Ed. 2d 513, 117 S. Ct. 1295 (1997) (stating, ′′where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as reasonable′′).

While there is no statistical analysis of how many terroristic acts the Transportation Security Agency prevents through their screening processes, we must evaluate the necessity of the program. Even if the Agency deters one individual from potentially committing a terroristic attack, the regulations in place have worked. Airport security is not only detecting but deferring individuals from bringing dangerous weapons and explosives onto airplanes, which is something every citizen in this country desires. Sometimes by individuals foregoing privacy on a smaller scale, they can create a larger array of protection for all citizens.


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