How Many Constitutional Violations Does It Take to Keep Our Planes Safe?

April 5

As Ken Anderson has already noted, I’ve been attending the “We Robot 2014″ Conference down at U Miami Law School the last couple of days – a truly eye-opening experience about what Ken describes as “the social life of things.”  I hope to have some thoughts about what I’ve learned here on the blog soon – but that’s not what I want to talk about at the moment.  Traveling down here from DC, I had my usual angry reaction, when standing on the TSA security checkpoint line at Reagan-National airport, at what has become the norm: special treatment for First Class and other “priority” travelers.  You don’t have to be an Occupy Wall Street-er to find this entirely outrageous.  I get it that money can buy many things, and that that’s not an inherently  bad thing – but one thing it should not be able to buy is improved government service.  We have a word for that:  “bribery.”  If passengers could pass  $100 bill to the TSA agent on duty in order to get moved to the fast lane, we’d all condemn that heartily.  Why it’s somehow OK when air passengers pay the extra money for First Class tickets and thereby get into the fast lane escapes me.  What’s next?  A special line at the DMV for luxury cars (no waiting!!  open 24/7!! )?  A special, secret phone line for high earners connecting them to the Social Security Administration that will get their questions answered more quickly than the hoi polloi?  It’s deeply anti-democratic and destructive, and if it’s not unconstitutional, it should be.

But even worse is this:  while waiting on the hoi polloi line, I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said:  “Once you enter the screening area, you will not be permitted to leave without TSA permission.”  Really?!  Actually, I am permitted to leave without TSA  permission, whether they like it or not, because the Fourth Amendment’s prohibition on “unreasonable . . . seizures” gives me that permission.  We have a word for this, too, in the law, when government agents don’t allow us to leave freely:  “being in custody.”  And the government cannot put me in custody when they have absolutely no reason to believe that I have broken the law – the 4th Amendment prohibits that.  Nor can they say “you’ve consented to being in custody when you go to the airport,” any more than they can say “you’ve consented to being in custody whenever you leave your home, so we can grab you and hold you whenever we damn please.”  [I made this point to the TSA agents on duty, who emphatically and vigorously denied that I was “in custody.”  So I asked:  Could I just leave the scene?  No, not once I had passed the designated checkpoint.  So I’m in custody? No?  Why not? Because it’s not custody.  But I can’t leave?  Correct.  . . . You get the idea.  I think they’re wrong, and it’s another bit of creeping state power over our actions and our movements and our privacy that’s pretty disturbing.

David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of "In Search of Jeffersons Moose: Notes on the State of Cyberspace" (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.
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Kenneth Anderson · April 5