September 11, 2001 should have forever changed our attitudes about secu- rity and privacy. But with each passing day without an attack on aviation, pas- sengers and those responsible for their safety and security grow complacent, and many special interests assert their concerns about assorted rights, usually
based on illusory constitutional rights to fl y. The Constitution, written in 1787, contains no such rights, since the fi rst manned fl ight, by balloon, had occurred only a few years previously, in France. 31 The Constitution does,
however, provide freedom for interstate travel, based on Article IV, Section 2. Contrary to widespread misinformation and misinterpretation, there is no constitutional provision, federal law, regulation, court decision, or treaty that provides for full and free expression of religious practices and speech in air- ports or on private aircraft owned by private carriers. In a landmark decision in 1992 that was applauded by hurried passengers and overburdened airport managers, the U.S. courts tossed out of airports the Hare Krishnas and oth- ers, who, under the pretext of expression of their religion, peddled posies in congested airport passages. 32
What any government or government-sponsored entity must not do is “es- tablish” any religion, meaning favor or support one religion over another, or deprive citizens (and others who, by various laws, have been granted rights similar to those of citizens), of constitutional due process, equal protection, and reasonable expectations of privacy. Contrary to public perception, free speech in a public airport or a commercial jetliner is not among the enu- merated rights. Thus, while aviation security professionals must avoid violat- ing air passengers’ constitutional rights of due process, equal treatment, and reasonable expectations of privacy, neither Muslims nor Methodists have the right to kneel in the aircraft or cry out prayers and pleas to the Almighty. In an aircraft or in an airport, your rights to public free speech, public expression of religion, association, protection against unreasonable search and seizure, smoking and chewing, and even to a large degree liberty itself are voluntarily surrendered when you purchase a ticket or consent to go through security. Such acts are voluntary choices made in conjunction with a choice to fl y. Such voluntary behavior is deemed by the law as consent to such constitutional intrusions, so long as they are reasonably related to the goals of security and safety.
As terrorist watch lists grow, as terrorists adopt more Western-sounding names, and as more U.S. citizens are among the terrorists and placed on watch lists, mismatches and other errors will increase. 33 Vigilant air travelers
who report suspicions of terrorist activity to the authorities should be pro- tected from retaliatory lawsuits. 34
In spite of a provision of the 2001 Aviation and Transportation Security Act granting immunity for reporting suspicious activities relating to aircraft or pas- senger safety, 35 several lawsuits have been fi led since September 11, 2001, in
response to perceived racial, ethnic, or religious profi ling. In one highly publi- cized incident that occurred in 2006, six imams were removed from a US Air- ways fl ight after they had gone through security screening, because other passengers had reported what they considered to be suspicious behavior, such as praying aloud in Arabic and allegedly making anti-American remarks. The six, who were questioned by airport security personnel and subsequently released, later fi led suit against the airline, the Minneapolis–St. Paul Metropolitan
Aviation Security and the Legal Environment 135 Airport, and several passengers, who had reported the behavior to the fl ight crew. 36 Following another incident in 2006, an U.S. citizen of Iranian descent
was awarded $27.5 million in a lawsuit against Southwest Airlines alleging false imprisonment because fl ight attendants had had her arrested following a confrontation involving in-fl ight service. The fl ight attendants claimed that the passenger had interfered with the fl ight crew. 37
With respect to the civil rights implications of evolving security screening technologies, some advances may actually make security searches less, rather than more, intrusive. Air passengers pulled from security lines for secondary screening to be inspected for potentially dangerous objects hidden on the body are usually given a pat-down or escorted to an inspection room for a strip search. New body-scan machines based on “millimeter wave” technol- ogy that create and transmit full-body images to screeners for viewing are being tested. The scanners create the images using electromagnetic waves from refl ected body energy. Some privacy advocates remain skeptical. 38 They
are concerned that the three-dimensional images are too graphic in that they show outlines of bodies and body parts, and that dishonest screening person- nel might save screening images and leak them to the Internet or the media. When used properly, the black-and-white images show a blurred face, are instantly deleted, and are viewed at a location removed from the scanning area so that the actual person is not seen by the screeners viewing the images. In the test phase, body scans are performed only on passengers who request them as an alternative to a pat-down, but the machines could eventually re- place metal detectors at airports. 39