Ethical Security Solutions

Saturday 22 July 2017

US Aviaton security and the 4th amendment disccussion


    With security concerns not only by airline companies but also by customers, how does one balance individual privacy rights with the freedom to search? The need for less intrusive security screening for customers is a must to satisfy the customer airlines experience and keep a happy customer base while at the same time ensuring that potential criminals or terrorists are screened out and apprehended.

    The fourth amendment protects the individual from being unlawfully searched, but at the same times, security must offer a rational method to searching and screening out threats. With this challenge in mind, the implementation of administrative search exception was developed to satisfy the needs of airlines companies, governments, and travelers.

     The administrative search exception implementation

     Since 9-11 airlines, terrorism across the world has gained momentum with terrorists and hijackers alike, and the need for better ways to vet passengers is the high light of modern security policies. This vetting process method raises the question of the civil rights of people in the context of security search measures and the fourth amendment. The solution to this problem came in the form of what is called an administrative search exception.

The administrative search exception issues as relating airport security has to do with the fourth amendment versus the person’s right to privacy against search and seizures with the question of legality.  Are the searches preventative based? Or are they law enforcement based? And how far can security go when it comes to these issues.    

    The two issues in question are, how the TSA can balance the need for societal security and the issues regarding the fourth amendment rights of illegal searches and seizures. In the analysis of administrative search and probable cause search, search exceptions are aimed towards serving a purpose for the safety of society and probable cause is issues of law enforcement which deals with the fourth amendment protection against illegal search.   

   Search exceptions also seek to look for a middle road approach in the way of dealing with searches and therefore have the expectation that people will give up some privacy interests for the sake of a bigger purpose in keeping passengers safe. Airline's administrative search actions do not require the security or law enforcement staff to have a search a warrant.

   Given the current terrorism events, if a person attempts to go through the screening area with banned items exposed or out of sight, the banned items can be confiscated by security. No warrants needed, due to the fact that people going to airports have the expectation of warrantless searches. Another search exception could be if a person enters a screening area and has consented to the search, he can be searched without a need for permission (Sweet, 2009).

   In the first case the person is in the airport area and gets searched, the other is in the screening area and gets searched without a warrant; both are examples of how administrative search exception is conducted in practice. How is this warrantless search possible? The government passed laws that allow airport screeners special permission to search passengers without a warrant, and in this context, the fourth amendment is not being violated, due to given, safety concerns.

According to Sweet (2009) in the Terry and Ohio, 392 U.S 1(1968) was: “to require individualized suspicion or reasonable suspicion less compelling than that needed for arrest, the other kind of exception is to require no reasonable suspicion at all, but instead to be required that search be conducted pursuant to some neutral criteria, which guards against the arbitrary selection of those subjected to such procedures and which also serves as a public purpose” (p. 242).

  The fact that terrorism, airlines hijacking or dangerous passengers exist, administrative search exception is allowed and conducted in the interest of public safety, even though there is no probable cause. Exception search and probable cause searches have their place and context within society when it comes to safety and security in fighting crime.    

    Exception search rules are applied to everyone who chooses to fly and understands the fact that if they chose to fly, there is no right to privacy when it comes to searches.  A non-airport example can be seen with the search rule that applies to students participating in sport, both high school, and university. The students in this context submit themselves to drug tests without a warrant and without fourth amendment rights being violated.

    These random drug tests in sports within educational systems are an example of an administrative search exception. And if it is legal to have warrantless drug tests in sports for the sake of safety, why would this same logic not be employed with airliners when it comes to a life and death the situation as a result a terrorist attack?

     The probable cause search is more law enforcement oriented, and an individual being observed displays behavior indicators giving probable cause to a warrantless search without the violation of the fourth amendment. An example of such behavior and a probable cause, a search can be by observing a group of people gathering in front of a bank building acting and behaving suspiciously, and the behavior pattern looks like they are casing the bank for a robbery.

    If a law enforcement official witnesses such behavior, they can engage the individuals for a basic pat-down search with the probable cause rule. In addition, in the case of probable cause search, the police may ask questions and do a basic pat-down of people in question. And if the people around acting suspiciously are found to be in possession of tools for burglary, given the context; they can now be detained or arrested.

    The differences between the administrative search exception d and probable cause are that exception search has no probable cause needed, and the safety of all is considered, thereby sidestepping the fourth amendment. The expectation of a search is self-evident, no special behavior is needed other than the fact that you are there.

    In probable cause search, you cannot be searched for standing in certain places like in the case of airport screening, unless your behavior or actions triggers a suspicious behavior reaction from the police, thereby giving them a probable cause to search you. When it comes to the Terry vs. Ohio decision, I do agree with the courts in regard to administrative search. I agree with them due to the fact that everyone’s safety while in air travel is a priority. If we travel by car, we know what we are getting into with and whom we chose to let ride with us. We also chose to let or not let in drunks with guns into our cars due to potential dangers associated with an angry drunk.

   If however we are personally not in control of other passengers and want to safely arrive at the destination, most of us would hope that there would be a source of professional and experienced authority to make sure we all arrive to our destinations safely.


  This is a case of logic versus emotionalism and a case of majority safety over an individual’s private rights to do as they please. An individual’s rights of the fourth amendment end when potentially all our safety is jeopardized. We don’t know is a certain person poses a threat to our safety and well-being, and so with the current global threat, not trusting and being suspicious in certain cases ensures survival.


     Administrative search exceptions are a basic need when it comes to the security of both people and infrastructure. Without it, criminals/terrorist can use the fourth amendment and the trusting good nature of people to wreak havoc in society.  From common sense perspective, to balance administrative searches and the fourth amendment rights should be a goal of every ethical security practice, but to use the fourth amendment rights against searches in all contexts of society are neither ethical nor practical when it comes to fighting crime and terrorism and our personal security.



The fundamental protection against unreasonable searches and seizures falls within the confines of the Fourth Amendment to the U.S. Constitution.  However, the Fourth Amendment has long been open to interpretation that has allowed for certain exceptions, and in this case, the Administrative Search Exception.   In other words, the government’s interest outweighs individual privacy.  This has proven to be a point of contention as the TSA, under the auspices of national security, has utilized measures to protect the United States against another “9/11”.  These measures are inclusive of the searching of all passengers as a prerequisite to air travel.  When argued, the courts have routinely upheld its constitutionality and placed less probable cause restrictions as opposed to other cases like Terry vs. Ohio.

By Shamuel Kohen

Sweet, K.  (2009). Aviation and Airport Security Terrorism and safety concerns. Second edition. (pp. 242). Boca Raton, FL. CRC Press.