The impact of the Fourth Amendment of the United States Constitution on security restraints at commercial airports is one that calls into question the limits of authority of both the federal government through the Transportation Security Administration (TSA) and state/local law enforcement officials who assist in overseeing security at these airports. Responsibility for the oversight of airport security and the screening of passengers and property at the screening checkpoint at U.S. commercial airports rests with the TSA under the Aviation & Transportation Security Act (ATSA). However, the airport operator and employees of state and local law enforcement authorities also play a significant role in carrying out airport security responsibilities.
With the TSA operating across the country, and in some cases, private contractor providing the checkpoint screening, handling their responsibilities slightly differently, coupled with local and state regulations and laws, there is a potential for misunderstandings between the TSA and the local airport operator/law enforcement.
The report explores:
- Federal statutory and regulatory authority of airport operators and local law enforcement after the TSA has conducted airport screening operations and transitions to local law enforcement with respect to federal constitutional limits, especially under the Fourth Amendment of the U.S. Constitution, of such searches of person and property.
- The requirements of airport operators to maintain an air transportation security program and to provide “a law enforcement presence and capability” that is “adequate to ensure the safety of passengers” under 49 U.S.C. Section 44903(c).
- The legal issues that airports and local law enforcement confront and need to understand when responding to TSA’s request for assistance based on findings from the ETD, and secondary screening as it relates to the right to privacy.
The research should include a summary of the roles of the airport operator, as well as the role of state and local law enforcement officials under ATSA, relevant case law and how it intersects with the TSA or screening entity. It should provide practical advice and strategies for addressing typical issues that arise in airport searches. This examination should include a review of federal Fourth Amendment cases that recognize the administrative or “special needs” searches as a justification for TSA screening at airports---both at security checkpoints and in other areas. The analysis should also include a summary of federal Constitutional constraints and operational protocols that should guide commercial airport operators in this area. In some cases, coordination with the FBI, Secret Service and Customs and Border Patrol may be required when contraband or other issues arise during the airport screening process. To that extent, the research should also include any Fourth Amendment issues that arise when these, among other federal agencies, become involved in handling airport travelers.
This has been published as LRD 27: The Fourth Amendment and Airports