When you enter an airport and board a plane do you give up your Fourth Amendment rights in exchange for flying?
The federal government thinks so, judging by “Quiet Skies,” a federal surveillance program that tracks U.S. citizens accused of no crime and part of no government watch list.
The Boston Globe originally reported the existence of the program tasked with, according to an internal TSA bulletin, decreasing threats by “unknown or partially known terrorists; and to identify and provide enhanced screening to higher risk travelers before they board aircraft based on analysis of terrorist trends, tradecraft and associations.” Individuals are added to the program based on international travel patterns, seemingly such as a visit to Turkey, or potential affiliation with suspects on a watch list.
Once part of the program, individuals remain the focus of surveillance “for up to 90 days or three encounters, whichever comes first, after entering the United States,” according to documents reviewed by the Globe. The scope of the program is quite large with between 40 and 50 passengers singled out for surveillance flying each day, of which about 35 will have a team of air marshals following and documenting their behavior.
In America, though, there are (supposed to be) protections from such invasions of privacy without cause.
Broadly, the Fourth Amendment and subsequent legal interpretations have formed the ground work for privacy rights in America. The language is pretty clear: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
In the 1960s the court developed the “reasonable expectation of privacy” test in response to eavesdropping devices in Katz v. United States. Based on that test, a person is considered subject to a search is their expectation of privacy is violated and if that expectation is one that society finds reasonable.
So how reasonable is the Quiet Skies program?
According the story originally reported in the Boston Globe, air marshals tracked behaviors such as looking at a boarding gate from a distance, looking at a reflection in store windows or boarding last. Additionally, passengers selected for surveillance were monitored for things like touching their face, body odor, blinking, sleeping during the flight, and if they used a computer or went to the bathroom. Travelers were also subject to reporting on meeting with people at the airport, talking on the phone, and how they left the airport.
In short, this is a lot of information to be collected about someone who, after all, isn’t even suspected of doing anything wrong.
Even the air marshals tasked with carrying out the program seem to recognize it goes too far.
In a statement, John Casaretti, the president of the Air Marshal Association said, “The Air Marshal Association believes that missions based on recognized intelligence, or in support of ongoing federal investigations, is the proper criteria for flight scheduling. Currently the Quiet Skies program does not meet the criteria we find acceptable.”
The Quiet Skies program essentially allows air travel to be seen as some sort of privilege that requires government permission and constitutes a special mode of being for U.S. citizens where deeply personal surveillance can be collected without a warrant, probable cause, or even official notice of the existence of such surveillance.
What sets the U.S. apart from surveillance states like China is, in part, our expectation of privacy and, along with it, the freedom to live our lives. The government tracking how many times you use the restroom and if you blink too much on a plane eats away at the very protections and rights that are guaranteed by the Constitution.
Americans must consider how many of these protections they are willing to forgo in the name of national security.
