Privacy In The Sky: The Balancing Act of Transportation Security

By Lyndsey Reeve
Lyndsey Reeve is a freshman in the College of Arts and Sciences at the University of Pennsylvania studying International Relations.​

The so-called “staggering successes” of Al-Qaeda’s airborne terror tactics have prompted several terrorist organizations to find new ways to hijack in the air—from explosives hidden within shoes and carry-on bags to recruitment of airport employees. Ranging from bombing plots posted on internet forums to attempts to use of airport employees to hijack planes, these threats are as concerning as they are ongoing. While many of these attacks have failed, they demonstrate a terrorist “motivation and ability” to threaten aviation [1]. After 9/11, increased transportation security measures including tools such as x-rays, explosive detectors, and personal examinations have been implemented to protect passengers from such terrorist threats. Consequently, airport security faces scrutiny for violating the privacy of innocents, discriminating against minorities, and creating an intrusive inconvenience.

Despite the discomfort or annoyance screening might cause, the “reasonable search” clause of the 14th Amendment verifies that privacy is secondary when protecting fliers from legitimate terror risks. Given the necessary measures, passengers should willingly submit to effective equal screening measures in order to protect themselves and others when flying on commercial planes.

Currently, the Transportation Security Administration (TSA) boasts numerous “unpredictable” security screening methods including carry-on screenings, checked-baggage screenings, millimeter wave advanced imaging technology to safely screen passengers while limiting physical contact, and as-needed pat-down procedures [2]. These measures have continually evolved post-9/11. After a procedural “roll-out” in 2018, the TSA developed the current clearer-than-ever X-ray screening complete with seperate bins for personal electronic devices [3]. Furthermore, a system dubbed “Secure Flight” analyzes fliers for the purposes of “identifying low and high-risk passengers before they even arrive at the airport using minimal personal information”[2].

While extensive, American procedures are like foreign measures in that they declare airport security as a shared responsibility of the government and aircraft operators. Notably, the UK, Japan, and Korea also employ passenger screening, baggage security, access control, and other such measures to ensure the safety of customers in a post-9/11 world [4]. The use of similar screening tactics in foreign nations reaffirms a dedication to public security—one vastly more important than long wait lines or irritating searches.

Despite this, American public reception to these measures is largely unfavorable. The pro-privacy crowd deems them invasive, citing Advanced Imaging Technology (AIT) and body pat-downs as methods that encroach on 4th Amendment protection from unreasonable search and seizure[5]. However, the 4th Amendment explicitly outlines “reasonable circumstances” wherein encroaching privacy is permissible to defend public security. Boarding flights certainly qualifies. Still, despite evidence that TSA screening uncovers an average of 81.6 firearms per week, several groups still protest screening [2]. Public interest groups such as “We Won’t Fly” encourage flight avoidance “until the pat-downs and scanners are suspended”. Due to this public outcry, government officials including former President Obama have defended current measures, deeming them “necessary to avoid a potential terrorist threat”. Janet Napolitano, former secretary of the Department of Homeland Security, also defended current scanners, calling them a “safe, efficient” protector of passenger privacy [6]. Pro-security backers like Napolitano argue that modern screening measures are minimally invasive and are the best way to cope with the dangers of flying—even if they can be a bothersome nuisance. While invading privacy is regrettable, this issue is nominal compared to the risk of death without scanners. Furthermore, expedited screening methods such as TSA Pre-Check offer an alternative to traditional screening wait times and can be used for frequent fliers. Additionally, new innovations continually expedite screening. For example, new scanners mean that many airports no longer require passengers to remove laptops and liquids from carry ons[7].

While some claim TSA runs a mere “security theater” designed to give the public peace of mind without actual protection, quantitative data disproves this. There have been no successful major American aviation attacks since 2001 while other countries like Russia and China have experienced such tragedies[8]. In 2017, the TSA reported a record number of firearms discovered in carry-on luggage: a staggering 3,957 weapons, with eighty-four percent of them loaded. Guns are not the only weapons commonly found in screening; devices like explosives, numerous daggers, and a stun gun disguised as lipstick were also found in 2017 alone [2]. While it is unlikely that the majority of these weapons were intended instruments of a terrorist plot, all are deadly tools that were kept away from the sky with TSA protection measures.

Although TSA measures have significantly diminished terror threats in the last decade, they can still be improved. Notably, body-cavity search via personal scanners is still difficult to conduct effectively and can be somewhat unreliable [6]. As the technology fueling terror evolves, American screening measures must advance to compete with organizations including Al-Qaeda. Compelling evidence of this lies in new terrorist laptop bombs which threaten to evade current scanners. This is concerning Al-Qaeda, a group based in Yemen known for its bomb-making mastery, specializes in explosive devices “that can be hidden on bodies or in items such as printer cartridges” [9]. Thus, constituents and officials alike must make a commitment to evolve security tactics that keep up with continuously morphing terror threats.

While it is widely agreed that all passengers should face equal screening measures (except in special cases where scanners detect a potential threat or said individual is on a government watch list as a past offender), this is difficult in practice. Ellen Baker explains that while current regulations strictly prohibit the use of race to determine the actual amount of screening used, “disparate impact” on those of Arab descent is permissible as there is a “compelling governmental purpose” under the Equal Protection Clause to identify and quell potential threats. She states; “The use of race in this context is not based on racial hatred, but on a very real need to provide increased security in the face of a threat that is coming from an organization whose members are mostly of Arab descent” [10]. Because of a constitutional commitment to security, certain ethnic groups are unfortunately affected by screening more than others (and will continue to be until these terror threats are neutralized). Of course, this disparate impact does not excuse discrimination—all individuals are, and should continue to be, subject to the exact same screening procedures. Ultimately, disparate impact is permissible but not disparate treatment.

For the 1.73 million American passengers boarding commercial flights each day, TSA screening can range from a minor inconvenience to a major hassle [11]. However, airline security qualifies as “reasonable search” under the Fourteenth Amendment, and thus potentially invasive measures are permissible to protect public welfare. Screening methods should evolve as technological capabilities improve, but current methods have found measurable success by mitigating risk. Furthermore, disparate racial impact is permissible under the Equal Protection Act, but government officials and TSA members should continue to emphasize a commitment to eliminate discrimination in aviation by subjecting individuals to equal treatment. While a hassle-free boarding process is the stuff of fantasy, protecting Americans in the air is not so out of reach.

​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Azani, Eitan. “Trends in Aviation Terrorism.” RSS. International Institute for Counter Terrorism, October 8, 2016. http://www.ict.org.il/Article/1757/trends-in-the-aviation-terrorism-threat#gsc.tab=0.
[2] Transportation Security Administration. Department of Homeland Security, n.d. www.tsa.gov/.
[3] Smith, Ian. “Enhanced TSA Screening Procedures Now in Full Effect.” FedSmith.com, April 22, 2018. https://www.fedsmith.com/2018/04/14/enhanced-tsa-screening-procedures-now-full-effect/.
[4] Yoo, Kwang. “A Study on Factors Influencing the Performance of Airport Security and on Responsibility Assignment of Security Task at International Airports.” Journal of Aviation/Aerospace Education & Research19 (2009): 1–15.
[5] Hoff, Jessica. “Enhancing Security While Protecting Privacy: The Rights Implicated by Supposedly Heightened Airport Security.” Michigan State Law Review1609 (2014). digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1108&context=lr.
[6] “The Debate Over Airport Security.” Council on Foreign Relations. Council on Foreign Relations, n.d. www.cfr.org/backgrounder/debate-over-airport-security.
[7] Moniuszko, Sara M. “Prepare to Leave Laptop and Liquids in Carry-Ons as TSA's New Scanners Roll out across U.S.” USA Today. Gannett Satellite Information Network, April 2, 2019. https://www.usatoday.com/story/travel/news/2019/04/02/tsas-new-scanners-allow-you-leave-laptop-liquids-carry-ons/3340420002/.
[8] “Timeline of Airliner Bombing Attacks.” Wikipedia. Wikimedia Foundation, n.d. en.wikipedia.org/wiki/Timeline_of_airliner_bombing_attacks.
[9] Perez, Evan. “First on CNN: New Terrorist Laptop Bombs May Evade Airport Security, Intel Sources Say.” CNN. CNN, April 1, 2017. www.cnn.com/2017/03/31/politics/terrorist-laptop-bombs-may-evade-security/index.html.
[10] Baker, Ellen. “Flying While Arab - Racial Profiling and Air Travel Security.” Journal of Air Law and Commerce 67, no. 4 (2002): 1–33. http://scholar.smu.edu/cgi/viewcontent.cgi?article=1642&context=jalc.
[11] “OST_R | BTS | Transtats.” Bureau of Transportation Statistics. United States Department of Transportation, n.d. www.transtats.bts.gov/.
​[12] Peterson, Barbara. “How Airport Security Has Changed Since 9/11.” Condé Nast Traveler. Condé Nast Traveler, October 5, 2016.

Photo Credits: ​https://flic.kr/p/RdYrWs