Originally Posted by
WillCAD
Are you being given a choice between A) voluntarily surrendering your 4th protection against unreasonable search and seizure and your 5th Amendment protection against compelled testimony (i.e. the right to remain silent), or B) voluntarily surrendering your Article 4 Section 2 Clause 1 right to unobstructed interstate travel?
If so, then the searches and interrogations are un-Constitutional.
Excercise of one Constitutionally-guaranteed right cannot be contingent upon the "voluntary" surrender of another; the contingency makes the surrender of either right non-voluntary and thus un-Constitutional.
It seems pretty clear, as stated here elsewhere, that the 9th Circuit has disagreed with you, in
Torbet (
Torbet v. United States, 298 F. 3d 1087, 2002),
Gilmore, and
Davis.
So long as the prospective passenger has the option of turning around and declining air travel rather than submitting to the screening process, the court has found that the security procedures have not been unconstitutional. (Important: the courts have acknowledged
a constitutional right to travel, but NOT a right to travel by air per se.)
This was stated explicitly (
Gilmore) with regard to the challenge on the basis of the Fourth Amendment:
Gilmore also suggests that the identification policy did not present a meaningful choice, but rather a "Hobson’s Choice," in violation of the unconstitutional conditions doctrine. We have held, as a matter of constitutional law, that an airline passenger has a choice regarding searches:
'[H]e may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a "consent," granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment.' Davis, 482 F.2d at 913.
Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options. Thus, we reject Gilmore’s Fourth Amendment arguments.
And why wouldn't the court find the same for a Fifth Amendment challenge -- so long as the prospective passenger retains the option of remaining silent and turning around and leaving rather than agreeing to interrogation (or agreeing, perhaps, to secondary screening in lieu of the preliminary step of interrogation)?
It would seem that the strongest constitutional challenge to this new security procedure would be directed toward being asked to state personal private information (eg purpose of travel and with whom you are/were meeting*) in full hearing of others, on the basis of an
expectation of privacy.(
Katz v. United States, 389 U.S. 347, 361 [1967] [Harlan, J., concurring]). Is asking for that kind of personal, private information, particularly in public,
reasonable and, crucially, is it "
no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives"?(
Davis)
*It seems very unlikely that an argument that being asked to state your name to the screener in the presence of strangers would be considered a violation of the Fourth Amendment, given that I suspect the courts would be unlikely to find that there is a reasonable expectation of keeping one's name private in the screening process. By presenting him- or herself to the checkpoint, and subsequently to the gate, a prospective passenger implicitly consents to having his name spoken in public, just as occurs in a doctor's waiting room, a school, or in many government offices.