TSA & a Free Country: Are they Compatible?

Tibor R. Machan

Why does the TSA annoy so many of us? Not having the resources to do a survey, I resort here to what might be called educated speculation. I suspect it is because free men and women consider it invasive for government agents to order them around--pat them down, make them endure electronic surveillance, being ordered around by TSA agents, etc.--unless they give their permission.

Just because someone embarks upon air travel it doesn’t follow that such permission can be inferred, especially if the search is conducted by government agents. If a private carrier states up front that utilizing it will require submitting to various intrusions, there is a difference. People may require of visitors to their homes or business establishments to submit to certain reasonable precautionary measures, say, for hygienic or security purposes. That’s because their home belongs to them and they may impose conditions for accessing it to others even if these others do not quite understand the rationale behind the measures to which they are subjected. They can go elsewhere. But when government imposes such requirements, given the overwhelming force it wields and its monopolistic powers, certain due process provisions must be met. One cannot escape the government since it runs air traffic. Thus, not unless there is solid reason to suspect someone of misconduct or ill will may they be interfered with by the government. Otherwise the policy is arbitrary.

Interestingly, when Senator Rand Paul was subjected to the TSA’s measures on January 23, another issue, apart from due process, arose: the US Constitution disallows interference with the travel by a member of Congress. There is a bit of ambiguity about it, though. Among other things, if such an individual “breaches the peace,” the interference is warranted. Yet, what constitutes breaching of the peace? Simply embarking upon air travel surely does not. So the TSA hasn’t even the legal ability and thus the authority to detain someone like Senator Rand Paul. And arguably it should not have such authority when it comes to citizens who aren’t suspected of any crimes.

I was traveling recently and boarded a flight at Newark Airport in New Jersey and was subjected to the pat down, etc., procedure. I was informed that my right palm tested positive for a substance that had been instrumental in causing the Oklahoma City blast of several years ago. I wasn’t actually shown this, even though I asked, but I didn’t insist since I needed to catch my flight and there wasn’t much time left to do so. I didn’t carry with me any materials of the kind detected on my right palm--I was not checking bags and everything I had was put through the machinery at the security check. Despite this, I was physically patted down by some bloke, something I didn’t welcome but because of their power over me I couldn’t escape. Either I underwent the procedure or I was barred from boarding my flight.

What exactly counts as grounds for suspicion? No clue but maybe by setting off some instrument that’s calibrated some way to detect hazardous substances establishes sufficient grounds. Of course, different people can become suspicious for different reasons, based on their own experiences, knowledge, worries, etc. Risk assessment is certainly not an exact science. Much of it is based on input from experts who have different ways of weighing risks. Here, too, competition is needed to figure out what policy is best.

It is wisest not to forget that levels of fear and concern vary and that here, too, one size does not fit all. So what the TSA selects as decisive in how to measure risk may well be largely subjective. At most the best results will be an inter-subjective assessment. No wonder people feel very uneasy when they are subject to such a wishywashy system.

In this area, too, a competitive market is necessary so as to come up with results that are reasonable. Unfortunately when government manages airport security, this isn’t possible. Too many factors influence the managers and there is little hope for an objective determination or even of one that is at least plausible. Which means that policies will be debated forever and will result in policies that are arbitrary. That is the result of the tragedy of the commons in his area of concern. The king’s intuitions rule but no one can figure out whether they make sense!