who else is sick to death of being bullied by "FAA regulations"?
Feb 24, 2002, 11:50 pm
#31
Join Date: Jun 2000
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by mapsmith:
Question for all who are very frequent fliers. (I'm casual)
If our "Constitutional Rights" are being eroded. (Specifically the Amendment in the Bill of Rights that protects us from "Unreasonable Search and Seizure") How come no one has yet filed suit against either the airlines, security companies, or the government for these violations.
BTW, FAA being part of the Executive Branch cannot unilaterally void one of the Amendments of the Bill of Rights. That takes an Act of Congress AND approval of the Legislatures of the States.
It seems to me that a "Gate Screen" by the airline AFTER a thorough screening by the TSA at the security screen is an Unreasonable Search. This is screaming for a lawsuit. B747's example where he was selected for a Gate Screen then had the computer determine he needed yet another screening by the same Gate Agent is a perfect example. (If only he were a US Citizen)
Any lawyers out there want to become famous and earn the everlasting gratitude of all Flyers????</font>
Question for all who are very frequent fliers. (I'm casual)
If our "Constitutional Rights" are being eroded. (Specifically the Amendment in the Bill of Rights that protects us from "Unreasonable Search and Seizure") How come no one has yet filed suit against either the airlines, security companies, or the government for these violations.
BTW, FAA being part of the Executive Branch cannot unilaterally void one of the Amendments of the Bill of Rights. That takes an Act of Congress AND approval of the Legislatures of the States.
It seems to me that a "Gate Screen" by the airline AFTER a thorough screening by the TSA at the security screen is an Unreasonable Search. This is screaming for a lawsuit. B747's example where he was selected for a Gate Screen then had the computer determine he needed yet another screening by the same Gate Agent is a perfect example. (If only he were a US Citizen)
Any lawyers out there want to become famous and earn the everlasting gratitude of all Flyers????</font>
Courts have interpreted the fourth amendment as time goes by to help it apply to new situations. (example: cars, what protection should they have with respect to search?). When courts make rulings in new cases, the decisions become "case law" which is generally examined by higher courts and then relied upon in similar future cases.
With respect to this issue, case law has deternmined that people have a certain right to privacy and this right cannot be invaded by the government except under certain circumstances for the good of society (Criminal activity and airline safety being some of these exceptions). Since it has always been private businesses searching us at airports, this has been less of an issue than it will be now. Note the recent example of the guy who got busted with marajuana....? Shaky ground as it is not legal to simply line people up and search them for anything incriminating.
Current activities of airport security personnel in at least some cases is most definately going to be challenged, especially in the cases where they pull people out and give them the rubber glove treatment. One still has a certain amount of expectation of privacy, even at the airport. In my opinion, much (not just at the airport) of the post-9/11 "security measures" are completely illegal in a strict sense. I was patted down at Universal Studios. In the past, this could possibly be a charge of battery against this person for the unlawful touching of me. Current law allows a brief pat down for weapons during a citizen's arrest if there is a reasonable amount of concern for safety but that's it.
Airport is different in that law allows for the screening for dangerous items. Courts weigh the infringedment into peoples rights vs. the benefit. There are reasons that the courts have allowed airport screeing. Note that is suppossed to be as least invasive as possible. Basically everyone goes through the same thing and know what to expect before hand, and the focus is on dangerous items, not policing the passengers. This has all changed now. The government taking this over is really going to bring up constitutional issues because I'm sure that instant criminal checks and more are soon to come, and that's wrong. I'm not in favor of making things easier for criminals, but I am against our government treating all of us like suspects and forcing ID scans, searches, detentions, and more for absolutely no reason.
Feb 25, 2002, 7:34 am
#32
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Good points, Pointman.
There are numerous issues:
1. FAA regulations can't have force of law without some constitutional basis, which is probably the "interstate commerce clause" of the constitution. I think it is questionable that we as persons can be arbitrarily "regulated" by the FAA however especially on intrastate flights. Plus, we as persons are not, if you think about it, subjects of the FAA. The airlines are, but we are not. The airlines can act under their mandate to follow FAA regulations but I think what is going on now amounts to a Federal takeover and dominion over our persons, which I doubt is legal.
2. Unreasonable search and seizure and right of privacy, just as you say.
3. The issue of military personnel directing orders at civilians in airports. We are not under marshall law, are we?
4. The biggest element is the profiling and tracking of individuals, now via requiring your ID, later on by tracking all movements and business of all citizens through computerized databases. This is the scariest part. The mechanisms for doing this are here. The political will is here, the will to resist is not. The airport part is almost the tip of the iceberg.
There are numerous issues:
1. FAA regulations can't have force of law without some constitutional basis, which is probably the "interstate commerce clause" of the constitution. I think it is questionable that we as persons can be arbitrarily "regulated" by the FAA however especially on intrastate flights. Plus, we as persons are not, if you think about it, subjects of the FAA. The airlines are, but we are not. The airlines can act under their mandate to follow FAA regulations but I think what is going on now amounts to a Federal takeover and dominion over our persons, which I doubt is legal.
2. Unreasonable search and seizure and right of privacy, just as you say.
3. The issue of military personnel directing orders at civilians in airports. We are not under marshall law, are we?
4. The biggest element is the profiling and tracking of individuals, now via requiring your ID, later on by tracking all movements and business of all citizens through computerized databases. This is the scariest part. The mechanisms for doing this are here. The political will is here, the will to resist is not. The airport part is almost the tip of the iceberg.
Feb 25, 2002, 8:17 am
#33
Join Date: Sep 2000
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how refreshing to see someone recognize that rights, as understood by the founders, come from man (meant in the gender neutral sense) and cannot be given or taken from man by government (at least not justly). There was a great debate at the time the Bill of Rights was enacted that even listing some of them could be construed that they had been GRANTED by the government or the Constitution(see Bork, Robert and Scalia, Antonin et al). Thus the command of the 9th ammendment...
"The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others RETAINED by the people (my emphasis).
I have always wanted each Christmas to send 365 copies of the 9th to Bork and cohorts with a stapler and the instructions to apply one q.d., text facing in, attached at the forehead.
[This message has been edited by wormwood (edited 02-25-2002).]
[This message has been edited by wormwood (edited 02-25-2002).]
[This message has been edited by wormwood (edited 02-25-2002).]
"The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others RETAINED by the people (my emphasis).
I have always wanted each Christmas to send 365 copies of the 9th to Bork and cohorts with a stapler and the instructions to apply one q.d., text facing in, attached at the forehead.
[This message has been edited by wormwood (edited 02-25-2002).]
[This message has been edited by wormwood (edited 02-25-2002).]
[This message has been edited by wormwood (edited 02-25-2002).]
Feb 25, 2002, 8:29 am
#34
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by wormwood:
[B]how refreshing to see someone recognize that rights, as understood by the founders, come from man (meant in the gender neutral sense) and cannot be given or taken from man by government (at least not justly). B]</font>
[B]how refreshing to see someone recognize that rights, as understood by the founders, come from man (meant in the gender neutral sense) and cannot be given or taken from man by government (at least not justly). B]</font>
Important to remember sometimes that we're not even 250 years old... my mom seems to have sweaters older than that. http://www.flyertalk.com/forum/smile.gif
Feb 25, 2002, 8:58 am
#35
Join Date: Apr 2001
Location: Bethesda, MD USA
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by mapsmith:
If our "Constitutional Rights" are being eroded. (Specifically the Amendment in the Bill of Rights that protects us from "Unreasonable Search and Seizure") How come no one has yet filed suit against either the airlines, security companies, or the government for these violations. </font>
If our "Constitutional Rights" are being eroded. (Specifically the Amendment in the Bill of Rights that protects us from "Unreasonable Search and Seizure") How come no one has yet filed suit against either the airlines, security companies, or the government for these violations. </font>
Feb 25, 2002, 9:16 am
#36
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by mdtony:
Probably because the airlines and the security companies are private companies and thus, the fourth amendment doesn't apply to them. Private companies can do a lot to you, including saying, fine, if you don't submit to this search, we won't let you on the plane, and it's within their rights. Look at the conditions of carriage if you can't sleep sometime. If you can stay awake long enough to finish it, you'll see that you're pretty much at their mercy.</font>
Probably because the airlines and the security companies are private companies and thus, the fourth amendment doesn't apply to them. Private companies can do a lot to you, including saying, fine, if you don't submit to this search, we won't let you on the plane, and it's within their rights. Look at the conditions of carriage if you can't sleep sometime. If you can stay awake long enough to finish it, you'll see that you're pretty much at their mercy.</font>
Note "unreasonable" and "government." Checking pax for drugs in customs when arriving from a foreign country, without probable cause, is not unreasonable. (I didn't say it, the supreme court did!)
Feb 25, 2002, 9:17 am
#37
Join Date: Mar 2001
Location: Gaithersburg MD
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There is a major difference between reasonable suspicion and probable cause. Law Enforcement can only detain a person for 10 minutes on reasonable suspicion. After that time frame, it is considered an arrest, becuase you are being deprived of your freedom of movement and liberty. You can only conduct a visual and a pat down for officer safety while you have someone on reasonable suspicion. This is done to establish probable cause that a crime is actually being or has been committed. To enter a secure and/or locked area or compartment of something not in "PLAIN VIEW", law enforcement needs a search warrant
to legally conduct that search, i.e. a trunk of a vehicle, unless you want to get into the warrantless search issues, because there are a few reasons.
In reasonable suspicion, law enforcement must advise the person being "STOPPED", AKA "Terry Stop" (law enforcement term). (a) the reason that they are being stopped and questioned (not interrogated) (b) that they are not under arrest (c) the law enforcement agency they represent.
Now, my question to everyone is this. Are screeners a part of a "law enforcement agency" or are they civlians just doing a job. If they are not a licensed law enforcement officer, i.e. someone possessing police arrest powers, than technically speaking from how the law is written, these searches should be found as unconstitutional and should not be permitted under the constitutuion. Then everything would be deemed "fruits of the poison tree" and everything from the illegal search would or should be thrown out as evidence in court.
Law Enforcement is not one who is only a security guard. There are ones in this area who are called "Special Police Officers" but they have police powers, who CAN conduct anything a normal police officer would do. Both a security guard (half moon red patch) and a Special Police Officer MUST be licensed in the jurisdiction that they work, and patches of such should be displayed on thier shirts and/or jackets while on duty.
I think that now that 9/11 has happened, the federal government is using this national safety issue to contradict what it has written, ruled upon, and upheld in the supreme court. To me, all of these United States Supreme court rulings which upheld citizens rights to illegal search and siezure, has been a waste of a few hundred years, since the government can change all of it overnight.
to legally conduct that search, i.e. a trunk of a vehicle, unless you want to get into the warrantless search issues, because there are a few reasons.
In reasonable suspicion, law enforcement must advise the person being "STOPPED", AKA "Terry Stop" (law enforcement term). (a) the reason that they are being stopped and questioned (not interrogated) (b) that they are not under arrest (c) the law enforcement agency they represent.
Now, my question to everyone is this. Are screeners a part of a "law enforcement agency" or are they civlians just doing a job. If they are not a licensed law enforcement officer, i.e. someone possessing police arrest powers, than technically speaking from how the law is written, these searches should be found as unconstitutional and should not be permitted under the constitutuion. Then everything would be deemed "fruits of the poison tree" and everything from the illegal search would or should be thrown out as evidence in court.
Law Enforcement is not one who is only a security guard. There are ones in this area who are called "Special Police Officers" but they have police powers, who CAN conduct anything a normal police officer would do. Both a security guard (half moon red patch) and a Special Police Officer MUST be licensed in the jurisdiction that they work, and patches of such should be displayed on thier shirts and/or jackets while on duty.
I think that now that 9/11 has happened, the federal government is using this national safety issue to contradict what it has written, ruled upon, and upheld in the supreme court. To me, all of these United States Supreme court rulings which upheld citizens rights to illegal search and siezure, has been a waste of a few hundred years, since the government can change all of it overnight.
Feb 25, 2002, 9:49 am
#38
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by TunaTacos:
Now, my question to everyone is this. Are screeners a part of a "law enforcement agency" or are they civlians just doing a job. If they are not a licensed law enforcement officer, i.e. someone possessing police arrest powers, than technically speaking from how the law is written, these searches should be found as unconstitutional and should not be permitted under the constitutuion. Then everything would be deemed "fruits of the poison tree" and everything from the illegal search would or should be thrown out as evidence in court.
</font>
Now, my question to everyone is this. Are screeners a part of a "law enforcement agency" or are they civlians just doing a job. If they are not a licensed law enforcement officer, i.e. someone possessing police arrest powers, than technically speaking from how the law is written, these searches should be found as unconstitutional and should not be permitted under the constitutuion. Then everything would be deemed "fruits of the poison tree" and everything from the illegal search would or should be thrown out as evidence in court.
</font>
You fail to recognize the concept of implied consent. By being a licensed driver, a "reasonable man" gives consent to having his/her BAC tested under suspision of DUI. Additionally, that same theoretical reasonable man has the expectaion of being searched at an airport - a search which is VOLUNTARY. Don't like it? That's fine, you can stop any time and leave - and drive to your destination.
If they should happen to find a crackpipe while searching you, then you have a fruits-of-the-poison-tree affirmative defense and the article (might not?) won't make it into trial. If they find a gun, however, you are directly breaking the law by bringing an undeclared firearm into a secure airport zone.
I am as much against silly security procedures as the next guy and gal, but I want to be sure that we're not confusing law enforcement with private (albeit government-owned) security.
The TSA folks are members of the federal gov't the same way that postal workers are. You just can't equate them with law enforcement.
Feb 25, 2002, 9:50 am
#39
Join Date: Aug 2000
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by TunaTacos:
To enter a secure and/or locked area or compartment of something not in "PLAIN VIEW", law enforcement needs a search warrant to legally conduct that search</font>
To enter a secure and/or locked area or compartment of something not in "PLAIN VIEW", law enforcement needs a search warrant to legally conduct that search</font>
Feb 25, 2002, 10:18 am
#40
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<font face="Verdana, Arial, Helvetica, sans-serif" size="2">Originally posted by B747-437B:
I believe the argument used here by the Feds is one of "IMPLIED CONSENT", namely that by being present at the airport and attempting to enter a secure area you are permitting a consensual search of your person and belongings. The relevant code section here would be 14 CFR 108.1</font>
I believe the argument used here by the Feds is one of "IMPLIED CONSENT", namely that by being present at the airport and attempting to enter a secure area you are permitting a consensual search of your person and belongings. The relevant code section here would be 14 CFR 108.1</font>
And I thought of one more example - high school athletes being drug-tested despite probable cause or reasonable suspicion.
Despite what they may have taught us in elementary school, we live in a Constitutional Republic, not a Democracy.
Feb 25, 2002, 12:44 pm
#41
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B747-473B: I agree that we give implied consent to a reasonable search of our persons and possessions when we enter the sterile area. My consent (implied) does not extend to unlimited, unreasonable, harrassment by anyone with any authority within the terminal.
The current screwed-up madness, however, like having your bag rifled through at the gate (after already having been screened at the checkpoint), is unreasonable, and therefore is not permitted by the US Constitution.
IMHO, the current witch hunt for everything sharp and pointy would not be upheld if challenged (but who has time to challenge the unlawful confiscation of a swiss army knife??).
OBL didn't win, but he sure scored some goals. http://www.flyertalk.com/forum/frown.gif
The current screwed-up madness, however, like having your bag rifled through at the gate (after already having been screened at the checkpoint), is unreasonable, and therefore is not permitted by the US Constitution.
IMHO, the current witch hunt for everything sharp and pointy would not be upheld if challenged (but who has time to challenge the unlawful confiscation of a swiss army knife??).
OBL didn't win, but he sure scored some goals. http://www.flyertalk.com/forum/frown.gif
Feb 25, 2002, 1:46 pm
#42
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There is a lot that can be done. Here are my Top Three:
1. assurance that our life and travel patterns will not be tracked in some government or contractor database. This is an essential right to privacy issue.
2. assurance that only airline safety issues will be material when being searched at the airport or gate.
3. autonomy given to individual airlines to handle security as they see fit. With adequate disclosure, this lets the airlines and their customers decide what is appropriate.
1. assurance that our life and travel patterns will not be tracked in some government or contractor database. This is an essential right to privacy issue.
2. assurance that only airline safety issues will be material when being searched at the airport or gate.
3. autonomy given to individual airlines to handle security as they see fit. With adequate disclosure, this lets the airlines and their customers decide what is appropriate.
Feb 25, 2002, 1:48 pm
#43
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some things in life are worth fighting over, some are not. it is up to you to make that call.
here is what i do.
when traveling in my home aiport, i look for the same security agents every time. i make it a point to remember these folks and slowly build a relationship. end result, no problems at security.
when traveling at remote airports i will do the same if i go there more than a few times. this is a little more difficult, but it can work there too.
it helps if you are doing this in little airports, but only so many people work a large facilities so it will only take a little longer to do.
i like to call it "beating the system from within" (c)
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f
[This message has been edited by fparker1 (edited 02-25-2002).]
here is what i do.
when traveling in my home aiport, i look for the same security agents every time. i make it a point to remember these folks and slowly build a relationship. end result, no problems at security.
when traveling at remote airports i will do the same if i go there more than a few times. this is a little more difficult, but it can work there too.
it helps if you are doing this in little airports, but only so many people work a large facilities so it will only take a little longer to do.
i like to call it "beating the system from within" (c)
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f
[This message has been edited by fparker1 (edited 02-25-2002).]
Feb 25, 2002, 2:04 pm
#44
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fparker1, this is great thinking and a smart practice.
It is very smart to accept those things you cannot change, and work within the limits that are set for you. It makes life much more pleasant and is my philosophy, too.
I don't really expect anything to change as a result of this thread and I don't have the time or the will to engage in lawsuits or political lobbying. I do think there is some value in the discussion, however, and it helps me mentally to know that others feel as I do.
It is very smart to accept those things you cannot change, and work within the limits that are set for you. It makes life much more pleasant and is my philosophy, too.
I don't really expect anything to change as a result of this thread and I don't have the time or the will to engage in lawsuits or political lobbying. I do think there is some value in the discussion, however, and it helps me mentally to know that others feel as I do.
Feb 25, 2002, 5:49 pm
#45
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Except that post 2/17, all air passenger screening is assumed by the U.S. TSA. As a result, government agents are involved even if working for a private rent-a-guard co. or airline. Thus, the 4th Amendment seems clearly implicated. For me the problem is when the rare screener wants to go paper-by-paper or card-by-card through my wallet or briefcase. I consider this unreasonable, but I do consider the TSA entitled to use reasonable means to see that I haven't a dangerous item therein. The other aspect of concern is that 95% of the screening effort seems directed at the 95% unlikely to be a threat. It would be nice to move that 95% more toward the other 5%.