Editor's Note: This Essay is part of a Colloquy Exchange between Professors Alexander Reinert and Erik Luna on the Fourth Amendment concerns of the new, invasive airport security measures. Read Professor Luna's contribution, The Bin Laden Exception, here
Imagine for a moment occupying your spare time by reading random appellate opinions in the Federal Reporter, and coming across the following passages in decisions addressing the Fourth Amendment limitations on airport searches:
When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.
The airport search is a direct reaction to the wave of airplane hijackings . . . , at which time popular feelings of fear and anger, and ultimately rage, called out for some program to safeguard air flights, and understandably so. Airplane hijacking is a particularly frightening crime. Many hijackers have been psychotic or political fanatics, for whom death holds no fear and little consequence . . . . Today, the general methodology of the airport search has become more or less routine.
The danger [of airplane hijacking] is so well known, the governmental interest so overwhelming, and the invasion of privacy so minimal, that the warrant requirement is excused by exigent national circumstances.
Surely you would be forgiven for thinking you were reading about the security measures recently put in place by the Transportation Security Administration (TSA): specifically, the TSA's installation of scanners that are capable of creating highly controversial images of random travelers as well as the "enhanced" pat frisks applied to passengers in certain circumstances. But the language quoted above is from a different era entirely—the period beginning in the late 1960s when federal appellate courts heard a slew of constitutional challenges to new security measures imposed by airlines and the Federal Aviation Administration (FAA) in the wake of a sharp increase in politically-motivated "skyjackings." My goal in this Essay is to examine the controversy surrounding the TSA's new airport search regime by reference to the Fourth Amendment jurisprudence developed in response to the first instantiation of mass airport searches.