Airport security screening and law enforcement

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The last time I flew, I was selected for secondary security screening, and I happened to strike up a conversation with the guy tasked to frisk me. He happened to mention that they find a substantial number of drug and currency smugglers. Apparently, when they find such miscreants, they turn them over to the police, who presumably arrest them.

Certainly, if the Feds set up checkpoints for the explicit purpose of search people for drugs before they got on the plane, people would be likely to object--and of course it would be a clear Fourth Amendment violation. Is it any better of the search is an incidental result of some other valid purpose (assuming for the moment that security screening is a valid purpose)?

So, what's good about this policy? Well, you catch criminals. (If you think drugs should be legal, imagine that we're catching people smuggling pirated CDs or something). Obviously this is a benefit. Now, the cost is the increased sense of fear induced in people going through the screening process.1 Now, of course, you can argue that the only people who will be afraid are criminals, but then ask yourself this: imagine there was some form of covert electronic surveillance that could detect people carrying drugs. Would you be in favor of the police being able to drive by people's houses and scan them? If not, what's the difference that makes the behavior of the TSA screeners acceptable?

1. Of course, they're not happy about it, but then they're criminals, so it's at least arguable that they don't have a right to complain. Of course, that's not an argument consistent with Cost-Benefit Analysis.

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I believe this question has already been addressed by the US Supreme Court, which ruled in Kyllo vs. United States that it is unconstitutional for police to scan homes with infrared sensors, looking for basement marijuana greenhouses. (Apparently, visible light sensors are still allowed--for now.) Eugene Volokh even wrote a long Slate article defending the decision. I ridicule them both here.

While Kyllo is certainly relevant, I'm not sure it's entirely dispositive. The problem, at least to my mind, is that infrared sensors potentially reveal other information about what's going on in my house. E.g., with sufficiently good sensors the feds might be able to watch me sitting on my couch, in bed, etc. It's certainly arguable that *that*, and not the risk of prosecution is the proble. On the other hand, in the case of airport security, the violation has already happened in order to attempt to determine that I'm not loaded down with C-4.

If your understanding of the logic of Kyllo is correct (and I suspect it is), then I agree that it doesn't imply that a hypothetical drug-detecting sensor (a german shepherd, say) is unconstitutional. On the other hand, it does quite clearly imply that airport security searches are unconstitutional in the first place, because of the their collateral effects on privacy. Of course, airport security searches are in fact deemed constitutional, irrespective of their collateral effects on privacy, because of the perceived necessity of preventing terrorists from boarding airliners.

In other words, this particular aspect of fourth amendment jurisprudence (like the vast majority of the rest of it, and most other constitutional jurisprudence besides) is pure public policymaking masquerading as legal reasoning. Searches for weapons at airport boarding gates pass constitutional muster, but searches for marijuana greenhouses in basements don't, because the majority of Supreme Court justices think spotting airline terrorists is really important, and finding pot farmers isn't. That the public, through their legislatures, have expressed the view that both are pretty important, simply doesn't matter. (That sort of thing only matters in democracies, anyway.)

Speaking of what the police do when they find these people, they don't always arrest them.

One of my friends hid some weed and his favorite bong in a secret pocket in his bag and forgot about it. 9 months later when he takes the bag to the airport, the pocket is found and he's turned over to the police. Fortunately for him, this happened in SFO (not in Salt Lake City, where he was flying) - and in San Francisco, marijuana enforcement has been set below jaywalking on the police's priority list.


I'm not sure why you want to focus on the legal aspects, which to my mind are the least interesting questions.

Every country needs to make these kinds of assessments, whether they have a constitutional legal regime like the US does or not. It would be nice to have some principles for making those decisions.

I don't think your "really important" standard really gets the job done, since I'd be fairly surprised of the public at large approved of mandatory population-wide urine testing, even if they think preventing drugs is "really important"

But Eric, that's what's so great about democracy: I can decide I'd like the police to have reasonably broad search powers to look for drugs, you can decide that you'd like the police not to be allowed to search for drugs at all, and other people can decide to take positions in between us, or even further on either extreme. Then the political process takes over, with the politicians figuring out some messsy compromise that results in as few people as possible being riled up enough to want to throw the bums out. That way, there's simply no need for any Grand Higher Principle of Searches and Seizures That So Perfectly Protects the People From State Power That It Simply Must Be Forced Down their Throats By a Tyrannical Judicial Junta, No Matter How Much Everyone Hates It.

Of course, if a GHPSSTSPPPFSPetc. is what you want....sorry--can't help you there.

I didn't say I wanted a principle imposed from above, so could you put your hatred of the Supreme Court aside for a second?

Sure, in a democracy people can individually form their own positions about how they would like the world to be, but I for one like to figure out what general principles I believe in and then form my positions based on those principles. That way I think with my head and not with my gut. If you want to say "that's my opinion and I don't have any interest in principles" then fine, but then we pretty much don't have any common ground on which to have a discussion.

I don't think it's fair of you to depict public policy preferences based on general principles as "thinking with your head", and those based on judgment calls as "thinking with your gut". General principles can be formulated and applied very unthinkingly, and judgment calls can incorporate a lot of careful analysis. General principles can be very useful at times, but I don't think they can answer every public policy question satisfactorily.

Then again, I suppose it's not surprising that you consider the use of general principles to be a matter of general principle, whereas I consider their use in any particular instance to be a judgment call....

"Judgement call"? On what principles do you perform the analysis that you say goes into a judgement call? The point here is that you and I have to agree on what's important at some basic level or we have no way of discussing/analyzing the merits of any particular course of action. That's what *I* mean by general principles.

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