"Secure Flight," Insecure Travel Rights

Campaign For Liberty
By Michael Ostrolenk, Robert E. Smith, Richard Sobel and Jan Towe

Starting this year, Americans will have to get government approval to travel by air. As Privacy Journal revealed last fall, henceforth "Permission Now Needed to Travel Within U.S." Getting a reservation and checking-in for air travel will soon require Transportation Security Administration authorization. That permission is by no means assured: For example, if your name matches a "no-fly" list, even mistakenly, you can be denied the right to a reserve a seat on a flight. If your name is on a "selectee" list, you and your possessions will be searched more thoroughly before you can board. What is going on here?

Protecting air safety is essential, but professional screening at airports already provides for it. Giving the TSA as an official agency the additional authority to decide who gets to go where reaches beyond safety into overextended governmental power. This newly minted "Secure Flight" rule fundamentally imbalances long-standing citizens' rights both to travel and to be left alone. If your name appears among hundreds of thousands on "watchlists," you assert that the government should not require ID to fly, you don't want to reveal your date of birth for concern about identity theft, or you don't choose to declare your gender, you can stay home.

By combining the requirement for government photo IDs in order to fly with checking government watchlists including potentially every passenger, "Secure Flight" puts the federal government into the business of licensing travel. All travelers will need government OK in order to board a flight, or take a cruise. What the government can allow one day, it can forbid the next. All things considered, isn't this a higher-tech and later-day version of South African domestic passports or eastern European checkpoints? In fact, because of the high technological capacity of the U.S. version, aren't its implications for travel control of plane, train, bus and subway travel much more far reaching? It's incredible that something like this is happening relatively unrecognized in America.

While some people consider the requirement to show ID or reveal a birth date a small trade-off for security, what is at stake here is the right to travel. That fundamental freedom of movement appears in the Articles of Confederation in the right to freely enter and leave all the states of the then small union. It was so fundamentally a part of American citizenship that the privileges and immunities clauses of the Constitution included it without explicitly mentioning it again for the more perfect union. With a large and expansive nation now ranging from Hawaii and Alaska to Washington DC, that right to travel nationally, and petition the distant government, is even more fundamental. Yet some courts maintain that if you can walk, you don't need the right to fly. People have the right to walk around freely without carrying a national ID; why do they have to show one to travel? The Supreme Court has yet to rule on the scope of the right to travel but lower courts have tended to restrict it more narrowly than the Founding Fathers would approve.

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