Update
From John Tyner
19 November 2010
I've gotten a lot of feedback from people about my interaction with the TSA last week stating that flying is a privilege, not a right. It is a privilege granted to me in consideration of payment of a fee to the carrier and comes with terms defined by a contract that I agree to when I purchase a ticket. The arguments along these lines fall generally into one of two categories: 1.) the purchase of the ticket implies agreement with the conditions of the contract and, thus, there is no right to complain about or opt out of the security procedures, or 2.) if one doesn't like the security procedures, one doesn't have to or shouldn't fly.
The first argument has simply to do with contract "law". (I admit, right here at the beginning, that I am not a lawyer of any kind, so don't misconstrue any of what you are about to read as legal advice.) A contract is essentially an agreement between two or more parties in which they define the terms of their interaction. In this case, I (actually, my father-in-law, but I'll pretend it was me) gave money to the airline. In exchange, they agreed to fly me to my destination subject to a number of conditions, the most important of which (for this discussion) were those pertaining to the security screening to which I would be subject. At the time of purchase and up until I arrived at the airport, it was my understanding that this screening involved passing through a metal detector, not an AIT machine. This was based on information on the TSA's own website. So, at this point in time, I have paid for a ticket and have agreed to be screened via metal detector and perhaps a "wanding" and pat down of a specific area, if necessary.
Upon arriving at the airport, I found that AIT machines were in use. From my perspective, this would put the airline in breach of contract. That is, the terms to which I agreed, that I would be subject to a metal detector, had been unilaterally altered. However, the metal detectors were still in use. There was a possibility that the contract, as understood at the time of creation, could still be carried out by the original terms. When I was selected for the AIT machine, though, this became an extremely remote possibility. (Since the TSA agents never allowed me to use the metal detector, the contract had at this point been breached.) I opted out of the machine, as TSA procedures allow. Still, I believed there was a possibility that I would receive a "standard" pat down as opposed to the one described in the video documenting my experience. I was willing to continue to try to keep the contract from being broken. Once the pat down procedure was described, however, there was no continuing. I would not subject myself to the described procedure, and now both parties were in breach of contract.
There are two ways to deal with this situation. The first is to enforce the contract. This means that I could require that the airline, via the TSA, live up to the terms as understood at the time of the creation of the contract. Alternatively, the airline, via the TSA, could require that I submit to the new screening methods. We both suggested these alternatives during the course of the discussion, but neither was mutually agreeable. Since neither party, at the time, seemed given to coercion, we had to turn to the second option. This second option is to void the contract. In this scenario, one or both (or all) parties determine that the contract is no longer in their best interest(s), and they agree to void the contract. Here, they all agree to return things to the state at which they were prior to entering the contract, possibly subject to some damages for duties performed under the contract that cannot be undone. I agreed not to fly; the airline refunded my money. Actually, the airline could have had a strong argument that they could not reasonably expect to resell the seat that I gave up and should be able to keep some or all of the money paid to them. In this case, they were gracious enough to refund the full fare. My contract with the airline was now over.
The interesting thing about this is that after the agreement had been terminated, the TSA continued to try to enforce the terms of the contract by asking me to return to the screening area. Not only that, but the TSA was employing coercive means (the threat of a fine) to enforce a non-existent contract. This is where the second argument, that if I don't like it, I shouldn't fly comes into play. This argument is not as black and white as it would seem on the surface. If the airlines were responsible for security, the "if you don't like it, you don't fly" argument would be a valid one, and this final interaction with the TSA would not have occurred. Once the government becomes involved, however, it is a party unto itself. By that, I mean that it creates rules that to which one can "agree" via entering into contract with the airline but from which, it contends, one cannot escape. Given that the TSA, over the years, has employed rules, policies, and procedures that have been kept secret from the flying public, there is no way that anyone can legitimately claim that a passenger has knowingly agreed to all of them. In spite of that, as a government agency, the TSA believes that it has the authority to use coercion to enforce contracts that cannot possibly be fully understood and, in my case, no longer exist.
The problem is bigger than that, though. The government, via the TSA, is saying that travelers can opt out of the protections afforded them by the U.S. Constitution. The problem with this is that there is no comparable alternative to flying for travel over long distances. By federalizing the security of all air travel, the government has severely limited (note that I do not say "removed") people's ability to move freely about the country by making them choose between air travel and their 4th amendment protections. Taken as a whole, the government is effectively removing the restrictions placed on it by the constitution by making it seem as though the people are willingly accepting the change:
The first argument has simply to do with contract "law". (I admit, right here at the beginning, that I am not a lawyer of any kind, so don't misconstrue any of what you are about to read as legal advice.) A contract is essentially an agreement between two or more parties in which they define the terms of their interaction. In this case, I (actually, my father-in-law, but I'll pretend it was me) gave money to the airline. In exchange, they agreed to fly me to my destination subject to a number of conditions, the most important of which (for this discussion) were those pertaining to the security screening to which I would be subject. At the time of purchase and up until I arrived at the airport, it was my understanding that this screening involved passing through a metal detector, not an AIT machine. This was based on information on the TSA's own website. So, at this point in time, I have paid for a ticket and have agreed to be screened via metal detector and perhaps a "wanding" and pat down of a specific area, if necessary.
Upon arriving at the airport, I found that AIT machines were in use. From my perspective, this would put the airline in breach of contract. That is, the terms to which I agreed, that I would be subject to a metal detector, had been unilaterally altered. However, the metal detectors were still in use. There was a possibility that the contract, as understood at the time of creation, could still be carried out by the original terms. When I was selected for the AIT machine, though, this became an extremely remote possibility. (Since the TSA agents never allowed me to use the metal detector, the contract had at this point been breached.) I opted out of the machine, as TSA procedures allow. Still, I believed there was a possibility that I would receive a "standard" pat down as opposed to the one described in the video documenting my experience. I was willing to continue to try to keep the contract from being broken. Once the pat down procedure was described, however, there was no continuing. I would not subject myself to the described procedure, and now both parties were in breach of contract.
There are two ways to deal with this situation. The first is to enforce the contract. This means that I could require that the airline, via the TSA, live up to the terms as understood at the time of the creation of the contract. Alternatively, the airline, via the TSA, could require that I submit to the new screening methods. We both suggested these alternatives during the course of the discussion, but neither was mutually agreeable. Since neither party, at the time, seemed given to coercion, we had to turn to the second option. This second option is to void the contract. In this scenario, one or both (or all) parties determine that the contract is no longer in their best interest(s), and they agree to void the contract. Here, they all agree to return things to the state at which they were prior to entering the contract, possibly subject to some damages for duties performed under the contract that cannot be undone. I agreed not to fly; the airline refunded my money. Actually, the airline could have had a strong argument that they could not reasonably expect to resell the seat that I gave up and should be able to keep some or all of the money paid to them. In this case, they were gracious enough to refund the full fare. My contract with the airline was now over.
The interesting thing about this is that after the agreement had been terminated, the TSA continued to try to enforce the terms of the contract by asking me to return to the screening area. Not only that, but the TSA was employing coercive means (the threat of a fine) to enforce a non-existent contract. This is where the second argument, that if I don't like it, I shouldn't fly comes into play. This argument is not as black and white as it would seem on the surface. If the airlines were responsible for security, the "if you don't like it, you don't fly" argument would be a valid one, and this final interaction with the TSA would not have occurred. Once the government becomes involved, however, it is a party unto itself. By that, I mean that it creates rules that to which one can "agree" via entering into contract with the airline but from which, it contends, one cannot escape. Given that the TSA, over the years, has employed rules, policies, and procedures that have been kept secret from the flying public, there is no way that anyone can legitimately claim that a passenger has knowingly agreed to all of them. In spite of that, as a government agency, the TSA believes that it has the authority to use coercion to enforce contracts that cannot possibly be fully understood and, in my case, no longer exist.
The problem is bigger than that, though. The government, via the TSA, is saying that travelers can opt out of the protections afforded them by the U.S. Constitution. The problem with this is that there is no comparable alternative to flying for travel over long distances. By federalizing the security of all air travel, the government has severely limited (note that I do not say "removed") people's ability to move freely about the country by making them choose between air travel and their 4th amendment protections. Taken as a whole, the government is effectively removing the restrictions placed on it by the constitution by making it seem as though the people are willingly accepting the change:
- The government finds an activity in which a great many people engage and which is difficult for them to avoid.
- The government then begins to regulate said activity with disregard for whether or not the authority to regulate said activity or the manner in which it regulates is constitutional.
- The government then uses people's continued participation in said activity and acquiescence to the regulation as an indication that its regulation is not only legal, but desired.
At this point, the government is free to operate outside of its own laws because it has forced the people to accept its actions because the alternative would be financially ruinous or prohibitively time consuming.
John Tyner @
http://johnnyedge.blogspot.com/
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