Originally Posted by
ND Sol
Gilmore was presented with the opportunity to not show ID and be subjected to further screening of his person and property. Instead he chose to leave the premises and sue. Other cases revolve around the screening of persons and property for WEI, not for playing 20 questions. The standard out of Davis is “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”
One has to use some tortured reasoning to reach the conclusion that questioning is for the purpose "to detect weapons or explosives, confined in good faith to that purpose". As such, I think that a passenger would have a strong case if he was denied access to the sterile area solely for refusing to play 20 questions.
Gilmore (from post 323 above):
In Davis, an airline employee searched the defendant’s briefcase as part of the airport’s preboarding screening procedure.... we held that airport screening searches of potential passengers and their immediate possessions for weapons and explosives is reasonable so long as each potential passenger maintains the right to leave the airport instead of submitting to the search. Id. at 912. In so holding, we considered several airport screening procedures, including behavioral profiling, magnetometer screening, identification check, and physical search of the passenger’s person and carry-on baggage. Id. at 900. We see little difference between the search measures discussed in Davis and those that comprise the "selectee" search option of the passenger identification policy at hand.
The Court (on the basis of
Davis) has already accepted behavioral profiling as a (potentially) lawful form of administrative search. TSA just needs to make a convincing argument that playing 20 questions is a key part of behavioral profiling.
And if TSA can convince the courts that the details of the answers provided to 20 questions aren't in themselves of material interest and that the agents asking the questions are only interested in how the prospective passenger behaves during the interrogation, well, that's icing on the cake.
I don't know whether this line of argument would fly in the lower courts, but my sense is that the Supreme Court as currently configured wouldn't have a problem accepting the argument from TSA.
Admittedly, if the 20 questions being asked were more innocuous than what we've heard so far and didn't encroach on personal private information (eg, "how was your trip to the airport?" as opposed to "with whom will you be meeting on your trip?"), it would be easier to avoid the charge that the interrogation is "more intrusive or intensive than is necessary."