Airport Security Post-9/11: Balancing Safety and Privacy Rights

The Post-9/11 Security Context

Although airports around the world have stepped up their security measures following the terrorist attacks of September 11, 2001, airports in the United States have become the focus of increasing attention in recent years because of the extreme measures experienced by the flying public. Media reports of abusive practices by Transportation Security Administration (TSA) security personnel are commonplace, and critics of the physical pat-downs and full-body digital scanning technologies have argued that Americans who simply want to fly are being treated like cattle, apparently stripped of their fundamental constitutional rights upon entering airport grounds. Proponents of these enhanced security measures maintain that the unique qualities of flight in the post-9/11 world demand a reinterpretation of the Fourth Amendment right to privacy. This paper analyzes the relevant literature to determine whether an alternative approach to current TSA measures is possible and, if so, provides a recommendation to the Department of Homeland Security concerning an optimal approach to airport security.

Anyone who has flown in recent years can testify that navigating security protocols at major American airports involves a lengthy, highly intrusive process that may appear to violate Fourth Amendment expectations of privacy. Yet many authorities and members of the general public believe that enhanced security measures became painfully evident following the terrorist attacks of September 11, 2001. The U.S. government's multifaceted response to this need has been the focus of growing debate concerning how much security is enough, even in a post-9/11 world. Cultural anthropologists such as Lippert and O'Connor (2003) report that "Security has become a more intense focus of public debate and concern following the events of September 11, 2001. In North America, especially, much media and political discourse has centered on the security workforce charged with the provision of airport security services and, specifically, the quality of service it provides" (p. 332).

According to Black's legal definition, the Fourth Amendment "guarantees people the right to be secure in their homes and property against unreasonable searches and seizures and providing that no warrants shall issue except upon probable cause and then only as to specific places to be searched and persons and things to be seized" (p. 657). The fundamental issue in the airport security debate thus relates to whether this right to privacy, enshrined in law, somehow changes or becomes diminished in certain settings.

Fourth Amendment Protections and Airport Exceptions

The Supreme Court has held that although the Bill of Rights does not end at the schoolhouse door, educational administrators have an overriding need to maintain a secure and safe learning environment, and certain exceptions to the Fourth Amendment are appropriate in some cases. Similarly, airports have been singled out for such exceptional treatment for analogous reasons. The same types of security measures used at the nation's airports are not deployed elsewhere, indicating that airports have been designated as the transportation mode most vulnerable to terrorist exploitation. Supreme Court Justice Souter emphasized in United States v. Drayton that "Anyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft. The commonplace precautions of air travel have not, thus far, been justified for ground transportation and no such conditions have been placed on passengers getting on trains or buses" (p. 1632). This view was reinforced by the fact that the 19 terrorists on September 11, 2001, used airplanes as their weapons to such horrific effect.

Given the unique context in which airports operate, the debate turns to whether current security measures are justifiable. Most authorities agree that improved safety in flight operations begins with airport security. According to Wallis (2003), "In-flight security must begin on the ground" (p. 119). The level of security required to assure acceptable safe operations remains the source of heated debate. Nevertheless, current security measures at airports have thwarted more than one terrorist attempt, and there have been no recurrences of a September 11, 2001-type attack on the United States in the intervening years. These are powerful arguments in support of current security measures. Despite these achievements, concerns about privacy invasion and inordinate delays caused by innovative security procedures in busy airport terminals remain (Wallis, 2003).

In post-9/11 America, people who complain about increasingly invasive security measures may even be viewed as unpatriotic or, worse, as terrorist sympathizers. The Fourth Amendment, however, does not specifically preclude the types of security measures currently used in airports, nor does it preclude even more drastic measures if circumstances warrant. According to legal authority Minert (2006), "The language of the Fourth Amendment to the Constitution is inherently ambiguous. While the Amendment specifically forbids 'unreasonable searches and seizures,' it outlines parameters for proper search warrants but does not specifically describe when such warrants are required. As a result, some authorities have argued that a warrant-preference standard is not required by the Fourth Amendment and that only a general reasonableness standard is required to determine the constitutionality of searches and seizure" (p. 1632).

Constitutional Justification for Enhanced Measures

This view is congruent with legal authority Lee (2010), who cites the need for law enforcement to take whatever steps are necessary in specific real-world situations, steps that may include pat-down searches and seizure of illicit material. Lee (2010) points out that "On the street, an officer with very little justification—the Court calls it reasonable suspicion—can briefly detain an individual and perform a patdown frisk of the person's outer clothing in a search for weapons" (p. 1404). With respect to Fourth Amendment protections against warrantless seizures, extraordinary circumstances call for extraordinary law enforcement measures. Lee further emphasizes that "If the officer comes across a container on the suspect during the frisk, he may open that container without a warrant and it is likely that a court will uphold his warrantless search" (2010, p. 1404).

Cost-benefit analyses used by courts to measure airport security measures against Fourth Amendment protections have consistently favored the government. Lee advises that "The courts have consistently held airport security measures constitutionally justified as a limited and relatively insignificant intrusion of privacy balanced against the need to protect aircraft and its passengers" (p. 1404). Minert reaches a similar conclusion: "If hijacking is assumed to be an extremely large risk to the public and if airport security searches (such as those provided by metal detectors) are considered to be minimally intrusive, then a preflight passenger search could be justified even if there is no individualized suspicion" (2006, p. 1632).

Minert (2006) suggests that "A new Fourth Amendment approach is necessary to justify warrantless preflight searches of passengers boarding airliners because the prevailing approach is based on the misapplication of a set of exceptions in the Fourth Amendment" (p. 1632). The unique status of airports in post-9/11 America and the need for enhanced security measures to protect the flying public has created a situation demanding a different approach to communicating these security objectives to the American public.

The Transportation Security Administration should cease being defensive in its public relations approach to enhanced security measures. Instead, the TSA should proudly advertise these security measures using social media networks and mainstream media to communicate that flying in post-9/11 America involves heightened security measures intended for public safety. By confronting enhanced security needs directly rather than retreating behind a media smokescreen, the TSA could shift public opinion in ways that mirror the acceptance of such measures by Israeli citizens, who recognize the genuine threats they face and understand that security precautions are necessary responses, not paranoia.

Public Communication and Acceptance

It is the harsh reality of life in post-9/11 America that global terrorism continues to exact a high toll on American lives and interests at home and abroad, and the terrorist agenda includes attacks in the future that may involve weapons of mass destruction. Furthermore, diminutions of basic constitutional rights are not unprecedented in American history. President Lincoln suspended the writ of habeas corpus in response to threats to national security during the Civil War, and President Roosevelt interned over a hundred thousand Japanese-American citizens following the attack on Pearl Harbor. As threats to national security have ebbed and flowed throughout American history, so too has the level of civil liberties afforded citizens. In the current environment, it is reasonable to suggest that continuing high levels of airport security are necessary and will pass constitutional scrutiny based on precedential cases involving airport security to date.

Critics who resent security measures must be made aware of their necessity through improved public relations campaigns by the Transportation Security Administration. It should be noted that Lippert and O'Connor (2003) emphasize that "Like other governmental forms, airport security is complex" (p. 333), and there will likely be continued isolated instances of abusive practices and overzealous TSA agents. Given that tens of millions of people pass through the nation's airports each year safely, this represents a respectable track record that should be emphasized to the traveling public.

Conclusion

Following the terrorist attacks of September 11, 2001, many observers remarked that "things would never be the same," and history has confirmed this prediction with respect to the nation's airports. This outcome is unsurprising given that the 19 terrorists mounted their attacks from some of the nation's busiest and largest airports. Many constitutional scholars have argued that the federal government went too far in its prevention efforts, but because there have been no such recurrences in the intervening years, these arguments have faded in favor of proponents of increased security measures that will continue to thwart asymmetrical warfare tactics used by terrorist organizations.