Expanding travel policing beyond no-fly lists (and the Fourth Amendment)
According to an article in POLITICO based on interviews with unnamed “law enforcement officials,” the US Department of Homeland Security (DHS) is considering expanded use of airline reservation data to target travelers for more intrusive searches:
The department could begin analyzing the travel patterns of suspected domestic extremists, monitor flights they book on short notice and search their luggage for weapons, a senior law enforcement official told POLITICO. There have also been discussions about putting suspected domestic violent extremists — a category that includes white supremacists — on the FBI’s No Fly List, the official said. When suspected extremists travel internationally, officials may be more likely to question them before they pass through customs and to search their phones and laptops.
A second law enforcement official told POLITICO that conversations about monitoring domestic extremists’ travel have involved multiple federal agencies at the interagency level, including the FBI.
We’ve recently discussed what’s wrong with the no-fly lists (there are several, created and maintained by different, although interlocking, entities, for different ostensible purposes) and why they shouldn’t be used like this or in most of the other ways that they are now used.
As Gary Leff puts it in his View from the Wing travel blog:
Denying the freedom of travel, without trial, is precisely the mob rule outside of the rule of law that we’re supposed to be pushing back on after the events of January 6th. Having the government ban travel on all airlines without judicial review is frightening in a democracy.
The latest article in POLITICO suggests tactics that go well beyond no-fly lists. It’s important to understand what’s being talked about, and how it would differ from previously-disclosed practices and exceed what is permitted by current law.
It’s crucial to recognize that, in this proposal, the DHS is testing the waters not for an expansion of existing authority, but an entirely new category of exception to the Fourth Amendment: a “pre-crime” search that is based on neither a warrant nor probable cause, but that — unlike an administrative search — targets individuals selectively.