Recently a friend had a non-refundable ticket and was flying the same flight as I was. When she checked in, I noticed that she had been SSSS’d and I informed them that she would be “secondaried” at the checkpoint and what that would entail.
At the checkpoint she asked if she passed the screening and did not alarm would she still require a pat down. At first the screener would not say one way or the other but she refused to pass through or put bags on the x-ray belt until they confirmed or not. They finally admitted that she would be subjected to secondary regardless because of the random assignment. She picked up her stuff and left. She went to the airline counter and asked for a refund.
At first the airline pointed out that the ticket was non refundable and she responded that she did not agree to a body search as part of the contract of passage. After a few minutes with a supervisor she was refunded her monies.
The questions I have are:
1. If she had placed her belongings on the belt and passed through the metal detector and then refused screening could she still walk away?
2. Since she did receive her refund on a non-refundable ticket how is consent to search an implicit part of the contract of passage?

^ ^

Good for your friend!!!

If you buy a refundable walk-up ticket and you get SSSS, definitely refund it.

In this case, if haraSSSSment is not specified in the CoC, then I think she is entitiled to a refund if she has not started the "screening" process.

I don't know about other airlines, but here is United's policy.

UA WILL REFUSE TO TRANSPORT...ANY PASSENGER...WHO REFUSES TO PERMIT SEARCH OF HIS/HER PERSON OR PROPERTY FOR EXPLOSIVES OR A CONCEALED, DEADLY, OR DANGEROUS WEAPON OR ARTICLE....SUCH CARRIER WILL, AT THE REQUEST OF THE PASSENGER, REFUND IN ACCORDANCE WITH RULE 260 (INVOLUNTARY REFUNDS).

Rule 260 provides for a full refund of the initial ticket price (or a commensurate fraction thereof depending if the ticket has been partially used).

You know, this is an interesting can of worms that just got opened -- how to get your refund on your non-refundable ticket. Show up, check in, don't check in any bags, get to the checkpoint, refuse to be screened.....

Nice! ^

However, I think if we try this more than once, then the airlines will add the following statement to the contract of carriage.

PASSENGERS WHO HAVE PREVIOUSLY PURCHASED TICKETS AND REFUNDED UNDER RULE 260 (INVOLUNTARY REFUNDS) FOR REFUSAL TO BE SCREENED WILL BE DENIED FURTHER REFUNDS FOR REFUSAL OF SCREENING. FURTHER SAID PASSENGERS WILL HAVE ALL FUTURE NON-REDUNDABLE TICKETS FOR TRAVEL ON UA/*A CANCELLED WITHOUT REFUND.

This is an example of what UA could add to the COC if this got used too much. Basically this becomes a no-fly list for each airline. Do it too much and you cannot fly anywhere with anyone.

Then they would add the following statement to website under terms and conditions of sale

NOTICE TO PASSENGERS: IN FURTHERANCE OF TRANSPORTATION SAFETY ADMINISTRATION PROCEDURES, ALL PASSENGERS WILL BE SCREENED PRIOR TO TRANSPORT. BY PURCHASING THIS TICKET YOU AGREE TO SECURITY SCREENING IN ACCORDANCE WITH CURRENT TSA GUIDELINES, WHICH MAY INCLUDE SECONDARY SCREENING AT TSA/AIRLINE DISCRETION. REFUSUAL TO BE SCREENED WILL NOT BE CAUSE FOR A REFUND OF ANY NON-REFUNDABLE TICKET.

just a thought. I just think we don't want to open this can of worms.

I totally disagree. This is a can that should definitely be opened. If the airlines start having the refund tickets and start getting grief from pax, then they might start putting pressure on the TSA to cease and desist.

As to your first question, almost definitely not. Existing case law on airport screening states that once passengers enter the screening process, they must continue until cleared, else criminals would have a "guaranteed means of exit" in the event they were detected.

As to your second question, search isn't necessarily implied into the contract between the carrier and the passenger, because the carrier is no longer the entity conducting or requiring the search. Frankly, I'm surpised more carriers don't have a provision similar to the one MSP-MSY posted from UA. The carrier here was probably under no legal obligation to refund the ticket...I think your friend just got a good break.

I seriously doubt the airlines can contractually obligate us to agree to TSA procedures that are put in place after we purchase our ticket. An good example would be a ticket purchased prior to but flown after the TSA pat-down/grope policies were put in place in September. Given the inconsistency in TSA screening policies from day to day, this argument could be stretched quite a ways.

Another case is that we don't know if we're going to get SSSS at purchase. We should have the option to refund the ticket once we see the SSSS on the BP. Especially since the TSA claims the airline is the one choosing to SSSS us (although we all know that's a farce in most cases).

I don't want to screw over the airline, but if just a few dozen/hundred pax did this, the airlines might apply some pressure to the TSA to have some modicum of respect for passenger rights.

please elaborate.

See post #9 and #11 in this thread:

http://www.flyertalk.com/forum/showthread.php?t=354774

Under the current system, the airlines run pax names through the secret selectee/no-fly lists, so the TSA can with some degree of honesty, blame the airlines when the pax gets selected. Of course, the airlines are forced by the TSA to use these lists. But TSA wll tell you to take it up with the airline if you disagree with being selected. So I submit the pax should have the right to demand a refund from the airline if selected.

If/when "Secure Flight" (CAPPS II+) gets implemented, TSA will take over the selectee/no-fly check and the TSA won't be able to blame the airlines. However, the TSA has little motivation to fix persistent false positives on these lists that harass innocent pax. TSA's current track record for getting people off the selectee/no-fly list is abysmal unless the pax in question is a member of congress.

First of all the wording I provided in my earlier post is an example of what the airlines could place in the COC if too many people start refunding tickets for security refusals. not an actual cut and paste from UA's COC.

Second, I think that if enough people started refunding the tickets under the rule 260. The airlines would change the terms that you agree to when purchasing the ticket to make it clear that screening is done, and that refusal will not be grounds for a refund. Contractually they can hold you to those terms because they fully disclosed the screening (that it will happen) to you, told you the procedures were out of their hands, and it is a term of the sale. Further because screening is done by the government, then any action done at the checkpoint would fall under the restraint of princes clause in the COC, which essentially states the airline is not responsible for government actions, and no refunds will be given because of government action. it is a risk of carriage.

In the end whether we agree with the procedures or not, if too many people take advantage of this clause, it would soon disapear. Further those who "abuse" the clause could easily find themselves unable to book tickets or fly the airline they use the clause on. In essence they would be banned from the airline because they are too much of a pain and a drain on the airline's finances. In most cases it would probably occur after the second refusual. The first one, the airline could say, you didn't know what the screening meant. After the second one, you couldn't say that, even though the rules change faster than anyone can follow.

If one agrees that the screening process starts when the ticket is printed, then one already has a "guaranteed means of exit." They don't have to enter the security lane if their ticket says SSSS.

NW's starts out similar, but with a decidedly different result:

NW WILL REFUSE TO TRANSPORT...ANY PASSENGER...WHO REFUSES TO PERMIT SEARCH OF THEIR PERSON OR PROPERTY FOR EXPLOSIVES OR A CONCEALED, DEADLY OR DANGEROUS WEAPON OR ARTICLE.... NW IS NOT LIABLE FOR ITS REFUSAL TO TRANSPORT ANY PASSENGER OR FOR ITS REMOVAL OF ANY PASSENGER IN ACCORDANCE WITH THE PRECEDING.... A PASSENGER SHALL NOT BE ENTITLED TO A REFUND IF THE PASSENGER'S TICKET IS NONREFUNDABLE.

Furthermore, NW has a whole section of the CoC with regard to TSA screening:

PASSENGERS AND/OR THEIR BAGGAGE ARE SUBJECT TO INSPECTION BY EMPLOYEES OF THE TRANSPORTATION SECURITY ADMINISTRATION (TSA) ACCORDING TO STANDARDS AND PROCEDURES ESTABLISHED BY THE TSA, WITH AN ELECTRONIC DETECTOR WITH OR WITHOUT THE PASSENGER'S CONSENT OR KNOWLEDGE.

THE TSA HAS INSTITUTED STANDARDIZED SCREENING PROCEDURES AT AIRPORTS ACROSS THE COUNTRY. THE FOLLOWING INFORMATION DESCRIBES THE NEW ENHANCED PROCEDURES AS THEY PRESENTLY EXIST:
1) EACH PASSENGER MUST GO THROUGH TWO STAGES OF SCREENING:
A) BAGGAGE CHECKPOINTS:
[snip]
B) PASSENGERS CHECKPOINTS:
PASSENGERS MUST PASS THROUGH THIS CHECKPOINT TO ACCESS THEIR DEPARTURE GATE. SECURITY SCREENERS WILL SCREEN PASSENGERS AND CARRY-ON BAGGAGE. THIS CHECK POINT INCLUDES X-RAY MACHINE, WALK-THROUGH METAL DETECTOR, SECONDARY SCREENING WHICH MAY INCLUDE A HAND-WAND INSPECTION AND/OR A PAT-DOWN INSPECTION, INCLUDING POSSIBLE EXAMINATION OF ITEMS SUCH AS SHOES (AS
DETERMINED BY THE TSA). IF CARRY ON BAGGAGE IS SELECTED FOR A SECONDARY SCREENING, BAG MAY BE OPENED AND EXAMINED AND MAY ALSO BE INSPECTED WITH AN EXPLOSIVE TRACE DETECTION MACHINE (ETD), WHICH IS SEPARATE FROM THE X-RAY MACHINE UTILIZED AT THE CHECKPOINT.
2) SOME PASSENGERS MAY BE SELECTED FOR ADDITIONAL TSA
SCREENING AT THE DEPARTURE GATE.
[snip]
NORTHWEST AIRLINES WILL NOT BE LIABLE IN ANY RESPECT FOR A PASSENGER'S FAILURE TO COMPLY WITH TSA'S SURVEILLANCE AND INSPECTION REQUIREMENTS.

When you buy a ticket from NW, it pretty clear says you are agreeing with the CoC. I'd say your implied consent is right there.

Agreed! The case law in question is from the 70s and early 80s, well before CAPPS entered the scene (and even then, in a different role) in 1994. But, that doesn't mean that the existing case law is any less applicable from a legal perspective.

i remember being "selected" before TSA took over. the only thing that has changed from what i can notice is the way that they check. unless it's in reference to instances in which certain senators or members of congress getting stopped for being on a list-which is different from the previous procedure.