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Originally Posted by joshwex90
(Post 17102115)
How exactly is this an interrogation? And furthermore, would it still be unconstitutional then if it were private security as opposed to the TSA?
It makes no difference that the act of opening appellant's briefcase was accomplished by a "private" airline employee rather than a "public" official. The search was part of the overall, nationwide anti-hijacking effort, and constituted "state action" for purposes of the Fourth Amendment. |
Originally Posted by WillCAD
(Post 17102338)
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. 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. 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. |
There may indeed be an incremental expectation of privacy in not audibly stating your name at a public checkpoint. For example: you might be a celebrity traveling from DTW to DAL and not be recognizable, but you have a distinct name that would be easily recognized. Not pronouncing you name when it is clearly written on the boarding pass will avoid someone else standing in line from hearing that name and calling the Detroit Free Press, and from there finding out you live in a mansion.
This is over and above announcing to local thieves hanging about name, dates and destinations and durations of trips, making your house easy pickings. That's why my luggage addresses are business addresses. After all, not everyone hanging around a check point is as honest as the TSOs. |
Originally Posted by greentips
(Post 17104235)
This is over and above announcing to local thieves hanging about name, dates and destinations and durations of trips, making your house easy pickings. That's why my luggage addresses are business addresses. After all, not everyone hanging around a check point is as honest as the TSOs.
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Originally Posted by Wally Bird
(Post 17092135)
http://www.usatoday.com/news/world/2...ijacking_x.htm
OK so it was only an attempted hijack, but how did he get pasted the vaunted Israeli security ? This isn't Israel and I don't want that type of 'safety' thank you. "I've heard 10 different descriptions of the pocketknife," authority spokesman Pini Schiff told Israel TV, dismissing the knife as a weapon. "Our security is meant to detect strategic weapons that could be used to hijack a plane," he said, not small implements. Otherwise, he warned, every passenger with a metal belt buckle or a pen would be stopped and searched, which would cause delays. They profile (in every sense of the word) and then search with varying intensity. If they don't find anything that can be used to hijack the plane, or to blow it up, they let you on. They don't ground people for 'bad intent'. |
Originally Posted by battensea
(Post 17104068)
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: 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. 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. |
Originally Posted by ND Sol
(Post 17105603)
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. 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. 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." |
The other questions though, again, is how does playing 20 questions benefit the passenger?
As far as I've heard, regardless of the performance during 20 questions, all passengers are still required to complete body scanning or magnetometer screening as well as to have their carryons scanned and possibly hand searched and/or swabbed for explosives toxicology; and if there is any question about the results of their body scanning or magnetometer screening, they are still subject to wanding and/or patdown. So what is to be gained by 20 questions as currently proposed? Is there a shred of evidence that the 20 questions procedure raises the sensitivity of detecting weapons or explosives compared to body scanning etc alone -- in trying to identify individuals who might have weapons concealed in body cavities that cannot be identified by the other routine screening techniques, for instance? It only begins to make some kind of sense if a favorable behavioral profile generated during the interrogation would allow the prospective passenger to be selected out of one or more of the other screening steps, or if there is evidence that using the behavioral profiling with the interrogation in combination with the other screening measures increases the overall screening sensitivity. |
Originally Posted by battensea
(Post 17104068)
*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.
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Originally Posted by Ari
(Post 17105275)
They profile (in every sense of the word) and then search with varying intensity. If they don't find anything that can be used to hijack the plane, or to blow it up, they let you on. They don't ground people for 'bad intent'.
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Originally Posted by Ari
(Post 17105275)
How many people have posted here that one cannot hijack a plane with a knife anymore? You can't blame the IAA for letting him onboard with something he couldn't hijack the plane with.
a) advocates Israeli-style security for the US b) uses inaccurate statements while doing so. In fact I doubt anyone could hijack (as in take command of) any flight any longer, although explosives are an ongoing risk. Which is why I disagree with profiling, BDO voodoo, 20 questions or anything else which distracts from (and adds nothing to) the primary purpose of security - keeping dangerous materials off airplanes.
Originally Posted by battensea
So what is to be gained by 20 questions as currently proposed?
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