The Post-TSA Airport: A Constitution Free Zone?

Abstract

The tension between national security and citizen privacy is clamant. Since the 9/11 terrorist attacks, the federal government has been charged with fighting a “war on terror,” ensuring that a terrorist attack of that magnitude does not reoccur on U.S. soil. While the war on terror has taken many forms and is fought in a number of places, this article explores the war on terror’s most symbolic theatre, the American airport. Federally mandated airport security measures involving the use of standard metal detectors and x-ray baggage scanners have been in place since the 1970s. As soon as the measures were introduced, they were challenged as unconstitutional searches under the Fourth Amendment. Every federal court of appeals that reviewed the issue held that the airport security measures were justified by a pressing government interest, and therefore were constitutional. And as the Supreme Court never weighed in on the issue, these security measures became widely accepted and constitutional challenges dissipated. Following 9/11, the federal government took control over airport security. By creating the Transportation Security Administration, the government seized control of airport security, deploying federal agents at all American airports and ramping up airport security measures. These new security measures included the use of AIT scanning--a full-body scan, for targeted secondary screening. Then, in 2010, following the Christmas Day Underwear Bomber scare, the TSA took airport security up a notch, employing AIT scanning as the primary screening mechanism, and in so doing, subjecting every passenger wishing to travel by air in America to a virtual strip-search. This highly intrusive search mechanism has received little attention from the courts. Despite numerous challenges and widespread protest, only one federal appellate court has analyzed the constitutionality of this new screening regime. This article fills a void in legal discourse, examining the constitutionality of current TSA screening measures, including the use of AIT scanning and behavioral profiling. Furthermore, as people continue to protest against TSA screening practices, First Amendment rights are implicated, and therefore the article sets forth what passengers’ First Amendment rights look like in the airport.