Air transport is a popular means of transport world over. Millions use this means of transport annually. Many airports all over the world record high traffic everyday. This means that from every country a large number of passengers are transferred from one point to the other using aircrafts. Back here in the United States millions of people use aircrafts to move from one state to another or from one town to another.
Since airports and airlines are used by such large number of people their security is paramount. Aircrafts and airports house a big number of people at any given time. Presence of such a large numbers of people at a one point pose a threat and these places can be a target by people with an ill intention especially the terrorists. It is from this backdrop that it becomes extremely necessary to provide optimal security in the aviation industry to get rid of bad elements whose aim is to destroy. The security in the aviation industry is aimed at preventing any harmful acts against the aircrafts, the crew members and most importantly the passengers aboard the plane and any other person who might be within the airport premises. (Heureman, J 1994 p78)
To enhance security, measures have been put in place to detect a threat before a criminal activity is carried out. Several methods have been applied to achieve this important element in any nation that puts the needs of the people first.
The methods include a situation where the passengers are required to pass through metal detectors where screening is done .This screening is aimed at detecting the explosives and it goes a long way in discouraging travelers or would be hijackers from entering the aircraft while they are in the possession of those dangerous gadgets which can cause great damage and suffering to the passengers on board as well as the aircraft itself.
In the situation where dangerous weapons have been sneaked in by the passengers with an intention of carrying out a criminal activity, such an incident has resulted in very ugly incidents like happened in September 11th 2001 where hijacked planes were used as weapons of mass destruction. The September 11th incident led to strict restrictions as far as airports securities are concerned. In august 2006 probable attacks were averted in Britain and United States due to effective airport security operations.
For the enhancement of aviation security some laws have been put in place to govern and promote the security in this important industry. The need for regulation of modern aviation industry started way back during the period of Second World War. At this time a conference was arranged to come up with a way into which regulation can be put in place to manage and govern the aviation industry. Chicago convention which took place in 1944 set together the aviation regulations which were to be applied internationally. (Heureman, J 1994 p84)
The concerned countries adopted the set international regulations and procedures. Later in 1947 a United Nations agency International civil aviation organization was formed to enhance development and cooperation within the industry. Within the organization a committee was set up. This committee was charged with the role of making convections and treaties in those areas where nations were supposed to work in unity. In 1963 the committee came up with Tokyo convention that tackled on the offences usually committed on many aircrafts and airports and the way this issue can be handled. (Maueman, K. p 23 2000)
In the 1960s hijackings had become very rampant bringing pressure for the Tokyo agreement to be ratified by the nations. The United States senate ratified the Tokyo convention in 1969.The amendments to the convention in Chicago strengthened the measures to be taken to improve the security of international flights.
Limits were set for various compensations out of injuries or losses arising as a result of incidents involving aircrafts. United States in 1970. Just like any other nation United States have national laws which are in line with the international rules. The national law is found in the federation aviation act of 1958.In the 1970s the passenger profiling system was put in place to identify those travelers who should go through security searches. This system mostly relied on behavior or characteristics of hijackers who are known to get the potential hijackers.
In 1996 President Clinton formed a commission to look for ways of improving aviation security. The commission recommended adoption of a new profiling method known as computer Assisted Passenger Screening or simply the CAPS system. The system was adopted by airlines in 1998 to determine the passengers who should go through the security checks or those whose luggage should undergo more checks than the rest. In 1999 the system was heavily criticized by the public and from this time its use was limited. (Ayres, J p 34 2003)
Following the September 11th terrorists attack there was a need for the enactment of stringent measures or laws to improve the security situation of the United States’ aviation industry and world at large. The Congress made an order for the CAPS system to be used again in determination of those who should go through additional security checks. An improved model was recommended by the Congress which was put into use in 2003 but was faced with a problem since airlines declined to part with information needed for the screening of potential hijackers. (Ayres, J p 44 2003)
Use of CAPS system has been challenged by advocates and civil societies as it involves interfering with the passenger’s privacy which is guaranteed by the constitution in the fourth amendment. This part of the constitution protects the people from searches and seizures which are termed as unreasonable. The group argues that the information gathered can be used in other cases which are of criminal nature something which is not related to the aviation security. The system can also be used to target certain passengers for searching through means which could be discriminative. (Maueman, K. p201 2000)
It is feared that the system will intrude people’s privacy while they become marked by the government. Since everybody is protected by the constitution from these unreasonable searches it does not mean that the security checks should not be done. They are important as they touch on very sensitive matter but the searches should be done in such a way that there is no victimization and our constitution rights are respected. (Daide, R.p45 2003)
What constitutes a reasonable check has been disputed and the judges in different cases have looked whether the personal right have been violated in a given circumstances. This has bee well illustrated in cases involving drugs and weapons such as state vs. ware and state vs. Epperson. To determine whether a search is reasonable or not judges usually deal with a case by case scenario instead of changing the law so that the ruling can apply in a standard manner. If there is no reasonable expectation of some form of privacy then the ruling will be that the search is legitimate and hence should continue and there is no violation of ones privacy. (Heureman, J 1994 p134)
When passengers want to travel using a plane he or she expects that privacy will be maintained at all levels. It can be argued that the search at the airport though vital for the security purposes will have violated his or her right since it was not reasonable. To continue with the search a warrant should be obtained or the authorities show that the passengers and the society at large do not recognize this specific expectation of privacy.
Confiscation of weapons from the potential hijackers is important since weapons such as knives or a pistol may be used by the hijacker to make the plane as a weapon as happened in September 11th attack where lives of the passengers and those on the land are at greater risk. In this case the hijacker uses the weapon that can cause greater destruction. (Yonah, A and Sochor E p5 2002
Terry doctrine has been used to legitimize the search for weapons for the passengers. This doctrine advocates that an officer is within law and is exempted from obtaining a warrant of search if his aim is to protection of self and others. In the case of states VS Lopez this doctrine was used to justify the search since the passenger presented a greater risk to others. The passenger failed a security check test and later declined to issue some identification documents. (Heureman, J 1994 p123)
The forth amendment has exemptions as far as searches are concerned. Air travelers are bound to be searched through exemption clause known as administrative search. This search is not part and parcel of a crime investigation to detect any or have evidence of a criminal nature. It is a way of making the potential hijackers discouraged from carrying out their mission. It should not be carried with an intention to come up with the evidence. The search is considered to be a state activity that is aimed at protecting the national security. The search is usually conducted in good faith therefore it is described as a legitimate search. If a weapon is discovered during such an exercise the seizure of the person concerned will not amount to illegitimacy. (Yonah, A and Sochor E p6 2002
It is a requirement that all the passengers boarding a plane undergo a search or be screened to make sure that they are not armed or are not carrying any dangerous weapon that can make the security of other passengers aboard to be at risk. Since aviation security is high priority to the aviation and federal government, at times the need for obtaining of a warrant search will jeopardize the other security. It is a requirement that the passenger is required to consent for a search. They are supposed to be given a chance of avoiding the search by declining to fly. (Yonah, A and Sochor E p14 2002)
With the onset of terrorist activities there is a great risk involved if the passengers are allowed to fly without being searched. A loaded gun is considered a risk and as a dangerous weapon as it can be used to terrorize the passengers even leading to hijacking of a plane. A search which can lead to discovery of such a weapon should be mandatory .Given that terrorism is a reality and the difficult experienced in detection of terror element searching for the sake of public interest can not amount to infringement of passengers rights. The bottom line is that any search for the sake of public security should be carried out in good faith. (Heureman, J 1994 p127)
Use of metal gadget may be argued as interference with the personal privacy but this act is important with the nature of operation being undertaken. A legitimate search involves informing the passenger of the procedure to be undertaken making sure they fully understand the importance of such a check on their safety. A consent from the passenger is required which can either be implied or through express means. To get consent from the passenger, force should not be used. Through this procedure the search will be termed as within the legal framework as the passenger will have surrendered his or her fourth amendment rights through voluntarily allowing a search to be conducted. (Ayres, J p 45 2003)
Unwarranted search are those that can be described as illegitimate where the passenger is forced to go through the searching procedure without them consenting. It involves interfering with the someone’s privacy where they are forced to go through a humiliating procedure. In this case it can be argued that the search is not in good faith since the passenger has not consented. In a situation where a warrant is not required as in the case of administrative search, which is sanctioned by the government as regulatory measure. (Maueman, K. p234 2000)
The search for security purposes though may be challenged on the grounds of violation of ones rights does not amount to illegitimacy. The harm that may be suffered by allowing passengers who may be in possession of dangerous weapons is relatively higher than the one may suffer from being subjected for additional search.
Loaded gun or any other dangerous weapon, sneaked in to the aircraft due to relaxed rules as a result of challenged law in the name of violating the passengers privacy pose a greater danger to all. It may cause loss of lives and massive damage to the property. In this situation the rights of a person will have superseded the public rights to be protected from dangerous individuals.
Through claiming that the search amounts to infringements of ones rights, it makes it hard for the security officers to perform their duties. They are charged with the role of preventing and detecting crime .When they can not search a potential hijacker who poses a real threat, their lives and the public safety is at great risk.
As long as the search is carried in a good faith and all the requirement are fulfilled the security if the public remains an important issue.
Heureman, J.Florida v bostick: Abandonment of reason in the fourth amendment reasonable person analysis, Northern Illinois law review (13) (1994)
Yonah, A and Sochor E.Aerial piracy and aviation security. Chicago Brill (2002)
Maueman, K.Airline passengers’ security screening and their right to privacy, Newyork, Dobmans (2000)
Ayres, J.The aviation law: Security and the Forth Amendment, Chicago Nolmycs (2003)
Daide, R.The aviation industry and its challenges, London, Academic Press (1999)