[tptacek]

You can not walk up to the security checkpoint at the airport. To see why this matters, imagine that the TSA could, as soon you bought a ticket, search you in your home. The police can actually do that, if they have a warrant.

[lambda]

There is a difference between "consent" and "putting up with because you want something else more."

I generally have a greater need to fly than to avoid being felt up. This does not mean I consent to being felt up. The fact that the Supreme Court mistakes this for consent bothers me greatly.

[philwelch]

That's like saying I consent to have the sandwich you made but I don't consent to give you money for it, therefore you the sandwich shop owner are robbing me. You analyze the cost-benefit and consent to the whole package. You can't pick and choose.

[lambda]

No, nothing like that. I do not have a constitutionally protected right to eat a sandwich. I do have one to be free from unreasonable search and seizure.

Furthermore, with the sandwich, there are alternatives available to me. I can choose to go somewhere else that serves cheaper sandwiches, or make my own. There are some places that I just cannot get to without flying; and some for which getting there would take so long as to be completely impractical, thereby cutting me off from a large swath of possible activity if I do not "consent" to being touched in the nether bits.

Their argument is like saying that by walking into a fraternity, a woman consents to being groped. Hey, maybe they even put up a sign saying "we grope women who enter here." That argument does not make it consent.

Furthermore, you are not able to remove your consent once you reach the head of the line. At may airports, they subject only some passengers to having nude photos taken of them by x-ray (or groping if you don't consent to the backscatter). But at the point when you get to the head of the line and find out if you're lucky, you are not able to leave in order to avoid the search; they have arrested people for trying to do so.

There are certain ways to coerce people to create an illusion of consent; but that shouldn't be confused with actual consent.

[philwelch]

> I do not have a constitutionally protected right to eat a sandwich

Nor do you have a constitutionally protected right to air travel.

[lambda]

And see, I find that to be a slimy, horrible way to get around these inconvenient "rights" that we have, by defining an entire class of activity, that is pretty much essential to be able to participate in the modern world, as a way of giving up your rights.

"Oh, sure, you may have a constitutionally protected right to free speech. But upon accepting employment or payment for anything, you waive that right." Hey, the government has the right to regulate interstate commerce, and has ruled that even commerce within a state counts because it impacts prices on an interstate level. So let's just do away with the whole bill of rights by saying "you give implied consent to no longer have these rights by engaging in commerce." Done and done.

[coin]

Not a constitutional right, but one granted by public law.

http://www.law.cornell.edu/uscode/text/49/40103

"A citizen of the United States has a public right of transit through the navigable airspace."

I choose to exercise that right by paying an airline to transport me by air.

[awj]

Not in this case there isn't. You showing up at the airport and going through security is implied consent to the search, just like opening the door to them without explicitly denying consent is enough for police to legally enter your house.

[michaelfeathers]

That's merely because the concept of consent has become polluted.

Anyone who wants to know what I consent to has to ask me.

[flyinRyan]

>just like opening the door to them without explicitly denying consent is enough for police to legally enter your house.

That's another example of where the US fails on human rights.

[mikeash]

If this really were the doctrine under which these searches were instituted, wouldn't there have to be a situation where the search procedures are fixed at the point where you bought your ticket, and they can't spring surprises on you by changing procedures between purchase and travel? Maybe I'm being unreasonable, but if the idea is that you implicitly consent when you sign up, then it seems like they should not then be able to change what you consented to later.

[tptacek]

That's not the doctrine the searches fall under.

[mikeash]

So then what does it mean that "you consent to the search by choosing to travel by air in the United States"?

[tptacek]

Exactly that? Consent isn't what enables the search, but it's still good that the TSA can't raid your house. What enables the search is (i) no investigative intent and (ii) no discretion on the part of the searchers as to who to search.