more on Right to Travel Case - for IP?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Finkelstein <sethf () sethf com>
Date: February 27, 2006 7:40:39 AM EST
To: Dave Farber <dave () farber net>
Cc: ip () v2 listbox com, Steven Hertzberg <stevenstevensteven () gmail com>
Subject: Re: [IP] Right to Travel Case - for IP?

> From: Steven Hertzberg <stevenstevensteven () gmail com>
> I do not understand this decision and hope that some from IP may  
> shed some
> additional light on the matter.  Given that a US citizen's rights are
> unalienable, how are we, as men, able to waive these god-given  
> rights and
> grant the gov't the ability to admittedly operate outside the  
> bounds of the
> Constitution?
> ...
> Decision can be found at:
> http://caselaw.lp.findlaw.com/data2/circs/9th/0415736p.pdf

        I think the key passages on that point are around page 22:

 "... The identification policy's search option implicates the Fourth
  Amendment. See Davis, 482 F.2d at 895 (holding that the government's
  participation in airport search programs brings any search conducted
  pursuant to those programs within the reach of the Fourth
  Amendment). Airport screening searches, however, do not per se
  violate a traveler's Fourth Amendment rights, and therefore must be
  analyzed for reasonableness. Id. at 910. As we explained in Davis:

     To meet the test of reasonableness, an administrative screening
     search must be as limited in its intrusiveness as is consistent
     with satisfaction of the administrative need that justifies
     it. It follows that airport screening searches are valid only if
     they recognize the right of a person to avoid search by electing
     not to board the aircraft.
  [...]

 "... [17] Additionally, the search option "is no more extensive or
  intensive than necessary, in light of current technology, to detect
  weapons or explosives . . . [and] is confined in good faith to
  [prevent the carrying of weapons or explosives aboard aircrafts];
  and . . . passengers may avoid the search by electing not to fly."12
  Torbet, 298 F.3d at 1089 (describing the requirements for
  reasonableness as laid out in Davis) (citations omitted). Therefore,
  the search option was reasonable and did not violate Gilmore's
  Fourth Amendment rights."

        Let's put it this way: Agree or disagree, the reasoning seems
straightforward. The passage about "license" is saying that what would
be unreasonable as a general Fourth Amendment matter is reasonable in
the specific context of "weapons or explosives aboard aircrafts".

--
Seth Finkelstein  Consulting Programmer  http://sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php


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