The Federalization of Airport Security: Privacy Implications
Whittier Law Review, Vol. 24, pp. 43-69, 2002
27 Pages Posted: 7 Jul 2009
Date Written: 2002
In the wake of the terrorist events on September 11, 2001, the government was faced with a public demand for increased airport security. The government had to respond in a way that ensured safety in air travel; Congress needed to pass laws mandating tighter security and stricter enforcement. In response, the Democratic Senate unanimously passed a bill called the Aviation and Transportation Security Act (Aviation Act), which would federalize airport security. The need for swift legislation surpassing partisan concerns, the Republican House and Bush Administration yielded to the Senate and agreed to federalize airport security.
Given the political turmoil at the time, Congress may have acted too quickly in passing the Aviation Act without considering the full impact of the Aviation Act on citizens' privacy. Federalizing airport workers has far-reaching implications. Fifth Amendment restraints may now affect the hiring and firing process of federal screeners. The Fourth Amendment will contour the extent of security searches of passengers by federal workers. Although Congress may have noted the substantive effects of the law on citizens' privacy, in their haste to pass the law they overlooked an aspect of the law, that passengers who have their privacy impermissibly violated will be less able to secure a remedy for that violation. Passenger plaintiffs will now have to face the defense of qualified immunity and overcome the daunting obstacle of political justification. This article explores the implications of federalizing on passenger privacy and citizen suits.
Keywords: Fourth Amendment, privacy, airport security
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