TSA Announces Policy of Viewpoint Discrimination

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)

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4 Responses to TSA Announces Policy of Viewpoint Discrimination

  1. Zach says:

    Perhaps now people need to explain that they are unable to present ID, but here is my boarding pass and the form from the airline. When asked why you can’t show ID you politely explain that you are not able to answer that question. If they push simply explain, “I am peaceful person who is trying to comply with all of the TSA’s policies, and so I am unable to answer that question. However, I believe my paperwork is in order and there is additional screening I am subject to, yes?” Perhaps enough of these “pointless” encounters and searches will finally make them see light.

    And perhaps I should invest in a parka store in hell…

  2. Or says:

    Or you could, you know, just cooperate and not mess up the process for the rest of us who just want to get from point A to point B. No one is forcing you to buy that ticket and get on that plane.

  3. elliottg says:

    I don’t think Gilmore vs. Gonzales relies on the option of additional search. Can you point to where that is the case? It seems mostly to rely on the question of whether denial of one form of transportation is impeding his right to travel. The part you quote is with respect to a 4th amendment violation and pretty clearly suggests that required searches for everyone would be fine. Since they have already concluded that requirement of presentation of ID for air travel was a constitutionally sound, I’m not sure how this separate discussion is relevant. More likely, the TSA saw that they prevailed easily on the ID question and decided the extra search option wasn’t necessary.

  4. finty says:

    Public service announcements or commercials? As with any new initiative or global shift,

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