Legal Commentary

TSA Announces Policy of Viewpoint Discrimination

By Professor University of Miami School of Law

TSA: TSA Announces Enhancements to Airport ID Requirements to Increase Safety

Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures.

Under the law that created TSA, the Aviation and Transportation Security Act, the TSA administrator is responsible for overseeing aviation security (P.L. 107-71) and has the authority to establish security procedures at airports (49 C.F.R. § 1540.107). Passengers that fail to comply with security procedures may be prohibited from entering the secure area of airports to catch their flight (49 C.F.R. § 1540.105(a)(2).

This initiative is the latest in a series designed to facilitate travel for legitimate passengers while enhancing the agency’s risk-based focus - on people, not things. Positively identifying passengers is an important tool in our multi-layered approach to security and one that we have significantly bolstered during the past 18 months.

I take this to mean that a person who says, “I have not lost my ID but contest your right to demand it” will be deemed “uncooperative.”

If that supposition is correct, then this is both unconstitutional and underhanded.

It is unconstitutional because — if my supposition is correct — it is viewpoint discrimination: the same person will get different treatment based on whether they acknowledge in principle that they don’t have rights.

It is underhanded, because TSA has prevailed in a number of court cases, not least Gilmore v. Gonzales, based in part on their saying that people who wouldn’t show ID could still fly, they’d just be searched more. (“Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options. “)

Having won the cases, they are doing a takeback.

On the other hand, I guess they get one point for being honest about it.

(spotted via Emergent Chaos, Praises for the TSA)

Full post as published by Discourse.net on June 08, 2008 (boomark / email).