By John R. Burns
On October 31, 2015, a Russian A321-200 airliner, operated by Metrojet, was blown out of the sky by an Islamic State of Iraq and Syria (“ISIS”) operative. The operative used a bomb hidden in a soda can to bring down the aircraft. “Russia said explosives weighing up to 1 kilogram, a little more than 2 pounds, brought down Metrojet 9268, which means ISIS’ claim it used a bomb the size of a soda can is plausible. Explosives expert Chris Owen, from Alford Technologies, said the volume of the can means it could contain a half kilogram, or 500 grams, of an explosive ‘which is just sufficient to bring down an airliner.’” All 224 passengers and crew were killed in the crash. Homeland Security Secretary Kelly called it the “deadliest air disaster in Russia’s history.”
In March 2017, Secretary Kelly “determined it is necessary to enhance security procedures for passengers at certain last point of departure airports to the United States.” The new restrictions applied to ten airports in Saudi Arabia, Qatar, Kuwait, the United Arab Emirates, Turkey, Jordan, Egypt, and Morocco. The restrictions, colloquially called the ‘laptop ban’, applied to “devices larger than a cell phone/smartphone.” The Department of Homeland Security, through the Transportation Security Administration (TSA), banned laptops, tablets, e-readers, cameras, portable DVD players, electronic game units larger than a smartphone, and travel printers and scanners on all U.S.-bound flights from these 10 airports.
Months later, in June 2017, Secretary Kelly referenced Metrojet flight 9268 at the Council for New American Security Conference. The Secretary announced a change in the restrictions on electronic devices in aircraft cabins on flights from certain Middle Eastern and North African airports. His hardline stance did not change; he said, “terrorists want to bring down aircraft to instill fear, disrupt our economies, and undermine our way of life. And it works—which is why they still see aviation as the crown jewel target in their world.”
At this point, the laptop ban as originally conceived has been rescinded. Instead, Secretary Kelly announced new security requirements on June 28, 2017. The requirements include enhanced overall passenger screening, heightened screening of personal electronic devices, increased security protocols around aircraft and in passenger areas, deployment of advanced technology, expanded canine screening, and additional preclearance locations. The requirements apply to 280 airports in 105 countries, affect a total of 180 airlines, which fly 2,100 daily flights and carry a daily average of 325,000 passengers.
All of these new restrictions raise questions as to the legality of such TSA actions. Congress has expanded the power of the government to regulate international air carriers entering U.S. airspace. In the aftermath of 9/11, Congress passed the Aviation and Transportation Security Act, which established the TSA.[1] The Federal Aviation Administration (FAA) subsequently transferred all its power to regulate aviation security to TSA.[2]
The Act and the FAA’s subsequent transfer of regulatory control over aviation security granted the TSA the power to regulate international air carriers.[3] The TSA uses its power to conduct searches to enforce their security requirements on international carriers. Several cases in the 2000s held that TSA procedures do not violate individuals’ rights under the 4th Amendment.[4]
Although it appears that TSA has widespread approval from courts to conduct searches and enforce their regulations on international carriers, the question of whether these searches and enhanced security requirements are effective in combating the threats facing American air travelers is still up for debate. Secretary Kelly’s goal to “raise the global baseline of aviation security” may be laudable, but the law is unclear.
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[1] Aviation and Transportation Security Act of 2001, Pub. L. 107-71, 115 Stat. 597 (codified as amended in scattered sections of 49 U.S.C.).
[2] 67 FR 8340 (Feb. 22, 2002) (“This rulemaking transfers the FAA’s rules governing civil aviation security to TSA.”). See also 49 U.S.C. § 44906 (“The Under Secretary of Transportation for Security shall continue in effect the requirement of section 129.25 of title 14, Code of Federal Regulations, that a foreign air carrier must adopt and use a security program approved by the Under Secretary.”).
[3] 49 U.S.C. § 114(f)(14) (2001) (“the Under Secretary shall . . . work with the International Civil Aviation Organization and appropriate aeronautic authorities of foreign governments under section 44907 to address security concerns on passenger flights by foreign air carriers in foreign air transportation.”).
[4] See U.S. v. Marquez, 410 F.3d 612 (9th Cir. 2005) (holding that an airline passenger’s Fourth Amendment rights were not violated when he was subjected to a random security screening); U.S. v. Fofana, 620 F. Supp. 2d 857, 861 (S.D. Ohio 2009) (“Warrantless and suspicionless [sic] airport screening searches are administrative searches and, therefore, exempt from the warrant requirement and constitutionally permissible if they are reasonable.” (internal citations omitted)); U.S. v. Hartwell, 436 F.3d 174 (3rd Cir. 2006) (holding that airport security checkpoint searches are justified by the administrative search doctrine).
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