The 4th amendment protects citizens from unreasonable searches of their persons, houses, papers, and effects. At the airport, however, the 4th Amendment is slowly dying.
What Are Your Rights at the Airport?
Federal law requires that any passenger boarding a commercial airline must be searched prior to entering the aircraft. (See 49 U.S.C. § 44902.) These warrantless searches are deemed constitutional administrative searches because of the unique dangers at the airport such as hijackings and other terrorist activities. Previously, if passengers did not want to subject themselves to a search prior to entering the secure area of the airport they had the right to refuse to consent to the search and leave on their own accord.
Not anymore.
In United States v Aukai (9th Cir. 2007) 497 F.3d 955, the court ruled that when an airport screening is reasonable and conducted under regulatory authority, a passenger cannot revoke their implied consent to be searched once the person attempts to enter a secure area of the airport, or even places a bag on the conveyor belt before they attempt to enter. To justify this decision, the Ninth Circuit found the policy of allowing a person to simply leave the airport after being confronted with a search was ridiculous. Further, the court held that allowing a person to refuse a search and leave the airport would allow multiple opportunities to penetrate airport security and this would pose an unacceptable risk in a post-9/11 world.
Your 4th Amendment rights, however, do not completely disappear once you try to enter the secure area of an airport. Searches are only reasonable “so long as they are no more extensive or 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.” This also raises privacy issues.
Many airports require passengers to step through full body scanners that provide security agents with a full view of your naked body. People may opt out of the body scans. But if they do, they get a full-body pat down which many claim is more intrusive and humiliating than the body scan itself.
Are these body scanners the least extensive and intensive way to detect explosives given current technology? With terrorists utilizing sophisticated plastic explosives and reports of them going so far as to use breast implant explosives they may well be. On the other hand, countries such as Holland are utilizing body scanners that hide the contours and face of the human body but still detect objects that could be weapons.
With technology rapidly evolving, the meaning of the 4th amendment in the context of the airport is sure to evolve as well. In a society that takes individual rights very seriously, many are worried that fear is causing an erosion of our most fundamental liberty rights. On the other hand, others believe that giving up some of these rights is necessary to ensure safety and to prevent a tragedy such as 9/11 from happening again. Whichever side you stand on, 4th amendment rights in the airport setting following 9/11 is certain to be a controversial legal issue and one to keep an eye on as it will affect the way we travel for years to come.
What would you prefer: Heightened security? Or faster lines at the airport?