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2007 Annual Forum
View Abstract
Commercial Aviation Security: Why People are More Dangerous than Bombs
Timothy M. Ravich, Hinshaw & Culbertson LLP and University of Miami School of Law
This article examines a critical question for aviation security policy makers, whether it is more important to screen for bad people than for bad things. The backdrop against which this inquiry is presented is a recent, expansive ban by the Transportation Security Administration ("TSA") of carry-on luggage. The TSA imposed a categorical ban of carry-on items on August 10, 2006 after British police announced they thwarted a terrorist plot to explode trans-Atlantic commercial airplanes using liquids undetectable by existing airport screening devices. The ban has since been tweaked to exclude baby formula or breast milk for passengers traveling with infants or small children, prescription medicine matching a passenger's name, and essential nonprescription medicines such as insulin. However, for the foreseeable future, the United States Department of Homeland Security will prohibit air travelers from carrying liquids, gels or lotions onboard an aircraft. These restrictions are disturbing both because they aggravate already inconvenient airport security processes and because they reflect reactionary policy made to a threat of which the government was aware before the fact. These restrictions also highlight why national aviation security policy myopically focused on bombs and metal objects instead of people is backward-looking and flawed, "the equivalent of fighting the last war."
Airline passenger profiling systems, whether by computer or behavioral observation, are a vital layer of commercial aviation security. Such systems are as necessary today as they were on September 11th, 2001 ("September 11th") when 19 terrorists hijacked at least four commercial airplanes to destroy the World Trade Center Twin Towers in New York City, the Pentagon in Washington, D.C., and either the White House or the Capitol Building. Presently the federal government is developing airline passenger profiling systems for the purpose of pre-empting terrorists with September-11th-like intentions. Specifically, the TSA has developed and is developing computerized profiling systems such as "CAPPS II," "Secure Flight," and the "Registered Traveler Program." These anti-terrorism devices are appropriate measures to manage the risk against future airline terrorism, be it of the magnitude of September 11th or otherwise.
This article does not accept the federal government's ongoing development of profiling systems uncritically. There are important constitutional and practical considerations that cannot and should not be dismissed simply because more security is needed at the nation's airports. Principle among these considerations are liberty and privacy.
This article aims to present both sides of the ongoing debate respecting airline passenger profiling.