Two recent decisions — one an administrative decision by the TSA,  and the other a judicial decision by the 11th Circuit Court of Appeals —  have dealt with, but failed to resolve, the question of whether, in the face of unpredictable demands for more intrusive searches, an airline passenger can “opt out” if they decide they would rather abandon their attempt to board a flight than submit to whatever search TSA or contractor checkpoint staff demand.

The TSA has withdrawn its proposed administrative fine against Jonathan Cobb, a passenger who, when selected for a pat-down (manual groping of his body, including his genitals, by which he had previously been traumatized), chose to abandon his attempt to fly and left the airport. That’s good, but sets no legally binding precedent.

Meanwhile, the 11th Circuit Court of Appeals has dismissed a petition filed by Jonathan Corbett seeking judicial review of the TSA’s policy of requiring selected passengers to submit to imaging of their bodies by virtual strip-search machines. That’s bad, but at least the decision was based solely on whether Mr. Corbett could expect to be selected for this sort of search, and left undecided whether these searches are Constitutional.

These decisions leave the law unclear in practice — even if the Constitution seems clear — as to whether or when an airline passenger can opt out of which sorts of searches.

How far can the TSA and its contractors legally go? How can tell if they are going too far? And when, if ever, can you “opt out” or say no to an escalated search?

For decades, airlines and airports operated without checkpoints or routine searches of passengers. When warrantless, suspicionless searches of airline passengers began in the early 1970s, they were challenged in court as a violation of the 4th Amendment’s prohibition on unreasonable searches and seizures.

In one of the first and what became the leading judicial opinion on this issue,  U.S. v. Davis (482 F.2d 893, 9th Cir. 1973), the 9th Circuit upheld what it determined was an “administrative search” of all passengers and their carry-on belongings, “provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.”

Other circuit courts have generally followed the 9th Circuit’s holding in Davis.

In Davis, the 9th Circuit noted that, “as a matter of constitutional law, a prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave…. Airport screening searches are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft .”

The court in Davis also noted that, “There is an obvious danger, nonetheless, that the screening of passengers and their carry-on luggage for weapons and explosives will be subverted into a general search for evidence of crime. If this occurs, the courts will exclude the evidence obtained. Appellant does not argue that airport searches are currently being used as a subterfuge for the prohibited ‘general search.'” The court also noted that, “exercise of the constitutional right to travel may not be conditioned upon the relinquishment of another constitutional right (here, the Fourth Amendment right to be free of unreasonable search), absent a compelling state interest.”

Notably, the court in Davis found that whether consent to a specific type of search could reasonably be inferred from the decision to enter the checkpoint depended on whether a passenger could reasonably have known to expect such a search. The court ordered the case remanded for fact-finding as to what Mr. Davis had actually known about what to expect at the then-new checkpoint, and what he could be inferred to have consented to.

That strongly suggests that  a type of search which could not reasonably have been anticipated by passengers would not have been considered consensual or permissible.

In U.S. v. Marquez (410 F.3d 612, 9th Cir. 2005), the 9th Circuit extended its approval of searches to which all airline passengers are subjected to searches to which only some passengers, selected at random, are required to submit as a condition of travel.

The court in Marquez also held that the right to opt out or “screening” searches exists only up to the point when a traveler gives their (implied) consent to search by entering the checkpoint: “[A] passenger must exercise his right to abandon air travel before beginning the screening procedures…. Any other rule would allow potential hijackers to leave whenever detection seemed imminent and permit them to try again another day.”

But the increased use of secrecy and varied and selective screening, in which different travelers are subjected to different sorts of searches based on the application of secret algorithms to secret datasets, makes a mockery of any claim that travelers give informed consent to whatever search they are subjected to.  Indeed, the TSA justifies its secrecy and the lack of publicly-disclosed procedures or criteria by claiming that the unpredictability of the process is both deliberate and necessary: It is intended to prevent would-be criminals (or anyone else) from knowing what to expect. To what, in such circumstances, can they be deemed to have “consented”?

In U.S. v. Aukai (473 F.3d 1265, 9th Cir., en banc, 2007), the 9th Circuit explicitly abandoned the increasingly dubious pretense of consent for searches at airport checkpoints:

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.”… Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent…. The constitutionality of an airport screening search, however, does not depend on consent… and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world…. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport

To the extent our cases have predicated the reasonableness of an airport screening search upon… consent, they are overruled.

What, if any, limits does this leave to the searches of air travelers that the courts (or at least the 9th Circuit) will uphold? According to the decision in Aukai:

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ] [and] that it is confined in good faith to that purpose.”

The elimination of consent as a criteria for the reasonableness of airport searches leaves it even more unclear when, if ever, a traveler can “opt out” of an escalated or more intrusive search, or how they can have such a search reviewed by the courts, especially when “screening” is variable and (deliberately) unpredictable.

Those are the issues presented in the latest judicial and administrative cases — neither of which resulted in a definitive ruling or greater clarity for travelers about their rights.

Jonathan Corbett, in the latest of his pro se challenges to TSA practices, petitioned the Court of Appeals for the 11th Circuit to review the TSA policy announced in 2015 that some secretly-selected subset of air travelers will be subjected to virtual strip-search imaging, without being allowed to opt out. But on July 19th, more than two years after the case was fully briefed, a three-judge appellate panel found that, because Mr. Corbett doesn’t know whether he will be randomly (or otherwise) selected for mandatory imaging, he lacks legal standing to challenge the practice.

That would seem to suggest that you have to wait until you are actually selected for a particular unreasonable form of enhanced or “secondary screening” search before you can challenge it. That’s what Jonathan Cobb did: Traumatized by having his genitals groped by TSA checkpoint staff  during previous “pat-downs”, he refused to agree to agree to be groped again. When he was selected for another pat-down, he offered to submit to imaging, or to remove all of his clothes so that he could be visually inspected for contraband, as John Brennan and other travelers have done in similar situations.

Mr. Cobb opted out of further “screening” and left the airport, electing not to fly and likely forfeiting the value of his ticket. The TSA checkpoint staff had no authority to arrest or physically detain him, and didn’t try to do so. All they could do was to call the local police, who had no cause to arrest him and merely escorted him out of the airport.

But the TSA followed up, as it had done with Mr. Brennan and others, by threatening to assess a $2,600 administrative fine against Mr. Cobb for having “interfered with screening personnel in the performance of their screening duties” by opting out of an enhanced pat-down and leaving the airport without trying to enter the “sterile” area or board a flight.

Earlier this month, after Mr. Cobb got a lawyer (through the Rutherford Institute) and submitted detailed objections to the proposed fine, the TSA finally withdrew its threat to fine Mr. Cobb. But that sets no binding precedent and leaves Mr. Cobb with no obvious way to obtain judicial review of the TSA’s actions, recover damages, or prevent the same thing from happening again to himself or other travelers.

Thanks to Jon Corbett for his pro se persistence, to Mr. Cobb for exercising his rights, and to the Rutherford Institute and their cooperating counsel for standing up for Mr. Cobb.

Where does that leave a traveler who objects to some of the techniques the TSA and its contractors sometimes use, but doesn’t know which of them will be used on her? Catch 22, it appears.

We encourage travelers to “Just say no” to unlawful orders from the TSA and its contractors. But you can only challenge the TSA if you are prepared to risk being fined by the TSA if you guess wrong about what practices the courts will, after the fact, uphold.