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I am a traveller, have a long Muslim name and I encounter frequent advanced searches at airports. Searching someone based solely on their name is obviously illegal as per the 4th amendment, but I assume bigotry exists so I learned to deal with it. However, what follows is a special case.

Let us say I wanted to go from airport A to airport C, and I need to transfer flights along this journey at airport B. Airport B decided to do an advanced search, causing me to miss my flight to airport C since the advanced search had taken too much time.

Is this a breach of the 4th amendment? Since the advanced search would be considered unreasonable in this scenario as it caused me to miss a flight, and the only justification that airport security could provide for the search was my name which is already illegal. Surely in this case airport security would be obligated to skip an advanced search on me since I have another flight shortly, but they decided not to; the only confounding variable that could have caused this was my name.

This is specific to the United States.

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    You are at Airport B for the convenience of your carrier, not because you want to be there: you want to be at C, correct? Getting you to C is your carrier's contracted duty. I have seen secondary TSA searches with a biometric scanner and document check "airside" in the boarding area - is this what you mean by advanced search, or something specific (i.e in your scenario do you have a reason to go "groundside" in transit at B?) Unless the result of it is an actual arrest, I am not convinced an airline gate agent would dispatch the plane without a passenger, in view, completing a process. – user662852 Sep 25 at 3:37
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    I would just point out that if your name triggers these searches because it is on some watch list then the problem is not discrimination but mistaken identity. This also happens to people with names that don't seem Muslim or Arabic, including federal legislators (Ted Kennedy, was it?). The problem is more the lack of due process with respect to challenging one's inclusion on the list. You may want to consider applying for a redress number. – phoog Sep 25 at 4:48
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    Why do you consider that "searching someone based solely on their name is obviously illegal" ? Name is not a protected characteristic in any law that I'm aware of; in some aspects (but AFAIK not relating to airport searches) ethnicity is a protected characteristic, but in general if someone has a blacklist of people which includes, for example, "Abdullah Ahmed Abdullah" (off of FBI most wanted list) then it would be reasonable and legal to stop and search people with that name solely on the basis of their name. – Peteris Sep 25 at 13:13
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    @Peteris Religion is a protected characteristic, and the agent appears to be equating Arabic name to Muslim religion. The same would be true if they discriminated against someone wearing a hijab, even though clothing is not a protected characteristic. – Barmar Sep 25 at 19:11
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    I don't have a Muslim name and am whiter than the average European, and I was still selected for advanced searches several times. People tend to notice and remember annoying events more often if it happened to them rather than to someone else. In the grocery store line, it's always your line which seems to advance the slowest. I'm not claiming illegal discrimination never happens, I'm just saying that not every inconvenience is due to discrimination. – vsz Sep 26 at 6:09
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The 4th amendment is irrelevant because you consented to being searched as a condition of passing through security - you don’t have to fly. You cannot revoke that consent once x-ray screening or metal detection has commenced i.e. once your bags are checked, your hand luggage is in the scanner or you have entered the metal detector.

The relevant issue is whether there has been a violation of the 14th amendment requiring equal treatment. If the ethnicity of your name is the sole reason you were selected for advanced screening then that is clearly a violation of this. However, if it is only one factor among several then it isn’t.

However, the problem is that TSA agents are not required to articulate their reasons for selecting you (or anyone else) and indeed, they do not have to have a reason. Therefore it is almost impossible to prove that this has happened. Several cases in the wider “policing” regime have suggested that even if statistically certain groups are disproportionately targeted then that is not evidence of such targeting in a particular case.

Further it is not clear if you would even have standing to sue - to prevent this kind of discrimination you have to show that you personally at risk of harm in the future.

Clearly this state of affairs is problematical - there is little doubt that airport screening, not just in the USA but worldwide is tainted by this sort of bias. The data shows it as well as plenty of anecdotal evidence - I’m 1st generation Australian with UK and Australian parents, my son’s girlfriend is 2nd generation but her grandparents were Thai: she gets stopped way more than I do.

This is bad not just because it’s antithetical to human rights but also because it is demonstrably less effective than purely random screening - where there is bias, that bias can be gamed. This article from a TSA employee states "Behavior Detection Officers (the guys who walk around and watch to see if you look creepy) are useless, and there are widespread rumors within TSA that the BDO program won’t be around for much longer." "The guys" are people and, like all of us, are subject to overt and subconscious bias in deciding what "look[s] creepy".

Notwithstanding, security is never “obliged” to “skip” a search even if the reason for that search is arguably illegitimate. You made the travel arrangements and you take the risk that you will not have enough time between flights for this or any other reason.

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    I agree, you don't have to fly. Why not just book passage on a steamship? – Harper - Reinstate Monica Sep 25 at 16:02
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    "This is bad...because it is demonstrably less effective than purely random screening...." Are you referencing any specific study in this statement? Can you add it to the answer? It seems counter intuitive to me, but I haven't exactly spent hours researching it! – bvoyelr Sep 25 at 17:06
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    There is debate to whether or not the search is reasonable even if you consented to it. To hide behind "you don't have to fly" is at best a weak support and at worst a strawman argument. – corsiKa Sep 25 at 17:19
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    @Delioth your argument hinges on the fact that this is actually done and not ignored in practice – DreamConspiracy Sep 25 at 20:40
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    @corsiKa "strawman" refers to presenting an argument that no one has made to have an easy argument to defeat. An argument that someone actually has made, no matter how weak, is not a "strawman". – Acccumulation Sep 27 at 20:14
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You have it backwards. The duty is yours, not to book connections that are too tight. (Or the airline if they book the itinerary).

If you book a connection so tight that you have to be OJ Simpson (back when he was famous for running through airports), TSA is not obliged to help you pull that off. In fact, think about it. If I was a terrorist trying to sneak something through, I would intentionally book a tight connection so I could argue that TSA must not delay me with a thorough search. So no, that "pass me over, I'm late" argument can't possibly work.

You said it yourself, TSA delays are foreseeable. That means you have a duty to mitigate damages, i.e. Not create a situation where loss will be likely from stuff that happens normally.

"But TSA pulls me out of the line way too often" -- that argument may have merit on its own. However your case doesn't turn on the discrimination, it turns on the delay. Was the delay so extraordinary that the knock-on effects are TSA's fault? That doesn't work if your TSA delay is within the stated limits they normally claim on their website etc. That is, if their standard advice is "figure 2 hours for TSA" and you miss your plane because you failed to allocate 2 hours for TSA, then it doesn't matter if TSA usually takes 5 minutes. They don't owe you 5 minutes merely because it usually takes that.

Regardless of this, if the airline booked your itinerary for you on a single ticket, they are responsible for getting you to your destination, and the costs of TSA, immigration etc. delays are on them. So again you have no cause of action against TSA since the airline protects you from loss there. I suppose you could argue that your time has value, but you'd never successfully seat a jury who would consider airport delays extraordinary.

If you booked separate flight segments independently, then it's all on you to make that connection work. Booking a tight connection is a newbie mistake. When that fails, you must work it out with the onward airline, but prepare to pay! If you say "I am going to be homeless at airport B" because you can't pay, that's because you don't have enough money to be an effective traveler. Immigration at B should have refused you and sent you home at airline expense, for that reason. You are not allowed to visit a foreign country and then rely on social services (the dole) or seek employ, and they aim to enforce that by seeing that you have spare money back for emergencies.

The US does not have transit zones like Dubai or Schiphol. If the USA is a hop on a journey between two other countries, you must have a USA transit visa (or VWP) and you must be admitted to the USA through immigration. If this is news to you, that's just bad planning.

If this excessive examination and delay you speak of was an immigration matter and not TSA, then they have wide latitude to do as they please. Precious few rights apply at the immigraiton desk, and they don't owe you anything befause you are asking permission to visit the country. Admission of foreigners is not a right. Queen Elizabeth doesn't have a right to visit the US, for instance. (Canada, yes).

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    The airport outside Amsterdam is named Schiphol, not Schiopol. Not completely sure whether that's the one you're referring to near the end of your answer. – a CVn Sep 27 at 9:45
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The fourth amendment does not apply to TSA searches. Passengers consent to the search as a condition of being allowed to enter the secure area of the airport and to board the plane. A search done with consent does not violate the fourth amendment.

I do not know whether you have some other cause of action here, but whatever it may be, it does not involve the fourth amendment.

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    Ah, America, where you technically have the right to not have something done to you, but you're forced to consent to it anyway. – user253751 Sep 28 at 11:16
  • @immibis nobody's forcing you to fly, just as nobody's forcing you to go to a sporting event or concert. Anyway, if the fourth amendment were to come up in this context in court, the searches would certainly be found reasonable. The reason the government doesn't want this to happen is that it would clog up the courts with cases in which people were challenging just how far the TSA could go without becoming unreasonable. – phoog Sep 29 at 8:03
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    Nobody's forcing you to live in America (as opposed to a tiny raft in international waters), but Americans often complain about the government making you do things if you live in America. – user253751 Sep 29 at 14:49
  • @immibis unless a US citizen has dual nationality, it's not usually possible to take up residence abroad, except for the privileged few who are well enough educated to obtain work visas. My point, though, is the use of "forced," I do not mean to say that people shouldn't complain about TSA procedures, but from a legal point of view (this is Law, after all), nobody is forced to undergo them. – phoog Oct 7 at 15:45
  • That's why I said "a tiny raft in international waters". People aren't forced to fly in the same way they're not forced to not live in the middle of the Pacific - which is to say, they are. – user253751 Oct 7 at 17:07
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Searching someone based solely on their name is obviously illegal as per the 4th amendment...I need to transfer flights along this journey at airport B. Airport B decided to do an advanced search [presumably because of your name], causing me to miss my flight to airport C since the advanced search had taken too much time. Is this a breach of the 4th amendment?

The only thing that you have added with this scenario is that you missed a flight. That pertains to the question of damages that you might be awarded. The 4th Amendment does not say "but only if you miss your flight". If the only basis for an advanced search is a national origin or religion assumption based on your name, that would not be a legal search.

It is claimed in other answers that consent sweeps away the 4th Amendment. The 4th Amendment does not say that consent creates an exception to the 4th. US v. Hartwell, 436 F.3d 174 points out that the courts are divided on the consent-based rationale, see US v. Henry, 615 F.2d 1223 in favor, US v. Albarado, 495 F.2d 799 against ("To make one choose between flying to one's destination and exercising one's constitutional right appears to us, as to the Eighth Circuit, United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973), in many situations a form of coercion, however subtle"). The Hartwell court notes that "consent theories are 'basically unsound' in the airport context because screening systems rarely meet the requirements for express consent under Schneckloth v. Bustamonte, 412 US 218". Rather, airport searches fall under the administrative search doctrine (United States v. Marquez, 410 F.3d 612). That case noted (citations suppressed) that

airport screenings are considered to be administrative searches because they are "conducted as part of a general regulatory scheme" where the essential administrative purpose is "to prevent the carrying of weapons or explosives aboard aircraft"). Thus, airport screenings must be reasonable. To judge reasonableness, it is necessary to balance the right to be free of intrusion with "society's interest in safe air travel".

Therefore, there must still be a balance between the governmental interest which motivates the search vs. the intrusion on the individual's privacy: the search must still be reasonable. The courts have not clearly ruled on what the limit of reasonableness is for airport searches. They have not ruled that there is no limit.

Hartwell reiterates that

Suspicionless checkpoint searches are permissible under the Fourth Amendment when a court finds a favorable balance between "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty"

What is important for this and all analogous cases of airport searches is that

the procedures involved in Hartwell's search were minimally intrusive. They were well-tailored to protect personal privacy, escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search.

There were multiple reasons for a more intrusive search in Hartwell; there were multiple reasons for a more intrusive search (and seizure) in George v. Rehiel. There has been no ruling that race or Arabic / Muslim name alone constitutes sufficient reason for an administrative search, and it is highly unlikely that there ever will be (as a suspect classification).

  • "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This is an unreasonable search as it caused me to miss a flight; the 4th amendment is applicable clearly. – Alias Sep 25 at 2:12
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    Wrong. The search isn't unreasonable because it caused you to miss your flight. It is unreasonable because the reason for your search was your name. Whether it caused you to miss your flight, or caused you no inconvenience is irrelevant. The reason for the search is what makes it lawful/unlawful, not the effects. The 4th amendment applies because of the reason behind the search was an unlawful one. – Shazamo Morebucks Sep 25 at 4:04
  • @ShazamoMorebucks if that is the case, when checking in at the airport, how can I persuade TSA to skip my ssss at airport B? As it will render me homeless in the country of airport B. – Alias Sep 25 at 8:08
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    @Alias Sadly you can't with any certainty. "Homeless in the country of airport B", though? Didn't you say this was in the USA? You may be delayed in getting to your destination, but you are not "rendered homeless". – Graham Sep 25 at 16:02
  • @Alias "This is an unreasonable search as it caused me to miss a flight; the 4th amendment is applicable clearly" All searches take time and thus might inconvenience someone. The ability of the government to search would be severely impacted if it couldn't "inconvenience" anyone without being unreasonable. – eques Sep 25 at 17:37

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