The TSA and civil liberties
Letter to the Editor | Monday, April 6, 2009
While I agree with Ben Linskey that the TSA has created nothing but “security theater” at our airports, his argument that privatization is the answer fails for two reasons, both of them rooted in constitutional law (“The tyranny of the TSA,” April 6). The first is that, while the Fourth Amendment prohibits unreasonable searches and seizures, and imposes a warrant requirement, it is not violated by the TSA’s practices, however invasive. Every right and liberty granted in the Bill of Rights can be surrendered voluntarily. You can give up your right to free speech when you sit quietly at a rally, or your right to the free exercise of religion by not going to Church. Likewise, if you willingly submit to a search, you waive your Fourth Amendment rights. That’s what you’re doing when you walk through security at an airport; it’s a voluntary act.
The second problem with Mr. Linsky’s argument in favor of the privatization of airport security as a way to protect our personal liberties is that the Fourth Amendment only applies to governmental actors. While many people read the amendment to provide for an affirmative liberty, all it does is restrict government action. See United States v. Jacobsen, 466 U.S. 109 (1984): “This Court has […] consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” Nothing whatsoever would prevent private screening organizations from being even more invasive.
Considering the still-present paranoia regarding air travel, it’s likely that instead of creating a race to the bottom, toward less invasive, less secure practices, privatization would result in a race towards more screening, exactly what Mr. Linskey wants to avoid.
third year law