JurisdictionUnited States
Publication year2021

§ 2.02 Passenger Safety and Accessibility

[1] The September 11, 2001, Disaster

On September 11, 2001, four regularly scheduled domestic commercial aircraft were hijacked by terrorists. Two of the aircraft were flown into both towers of the World Trade Center in New York City resulting in their collapse. The third hijacked aircraft was flown into the Pentagon in Washington, D.C. The fourth aircraft crashed into a field near Pittsburgh.196 The total number of dead exceeded 3,000.197 The ease with which the hijackers boarded the aircraft and seized control with knives and boxcutters198 highlighted just how vulnerable our airports and commercial aircraft are to terrorist acts. This horrific disaster generated significant changes in passenger security at airports and on aircraft199 and on other carriers such as cruise ships, railroads and buses200 and at hotels, resorts,201 theme parks and casinos and increased awareness of security considerations by travel sellers,202 increased passenger restrictions203 including obtaining approval to enter the U.S.,204 use of passport cards,205 expanding security to private aviation,206 and downright denial of danger,207 delays,208 racial profiling and discrimination,209 violation of passenger privacy rights,210 encouraged the development of missile defense systems,211 search of laptops,212 use of whole-body scans,213 and conflicts over privacy issues both domestically214 and with foreign countries.215

And, of course, the courts have addressed the consequences of the events of September 11, 2001, including the duties owed to passengers and the occupants of the doomed aircraft216 and the targeted buildings217 and adjacent buildings,218 resolution of claims by the families of victim compensation funds,219 efforts to hold foreign governments accountable for funding terrorist organizations such as al Qaeda,220 racial profiling,221 violation of privacy rights,222 the mistreatment of unruly passengers223 and of disabled passengers,224 responsibility for canceled flights,225 and the legality and efficiency of installing airport screening machine templates limiting the size of carry on baggage.226

[2] Aviation and Transportation Security Act

[a] Aviation and Transportation Security Act

On November 19, 2001, President George W. Bush signed the Aviation and Transportation Security Act (ATSA) into law.227 The ATSA "makes security for all modes of transportation, for the first time, a responsibility of the federal government."228 The ATSA created the Transportation Security Administration (TSA)229 and the position of Under Secretary of Transportation for Security.230 The TSA "will create a new federal airport security force and an expanded Federal Air Marshall program."231 The TSA "will hire and deploy security screeners and supervisors at 429 commercial airports . . . the screener workforce is likely to exceed 30,000. . . . In addition, TSA will employ thousands of Federal Law Enforcement Officers . . . as well as intelligence and support personnel."232 The TSA was first an agency of the Department of Transportation, but is now an agency under the Department of Homeland Security.233

The ATSA also established the Transportation Security Oversight Board,234 provided for the deployment of federal air marshals235 "on every passenger flight of air carriers in air transportation or intrastate air transportation," crew training236 "to prepare . . . for potential threat conditions," security screening pilot programs237 "carried out by the screening personnel of a qualified private screening company," security service fees which "may not exceed $2.50 per enplanement,"238 immunity for reporting suspicious activities239 which protects airline employees from civil liability for making "a voluntary disclosure of any suspicious transaction relevant [to] a threat to aircraft or passenger safety, or terrorism," voluntary provision for emergency services240 providing that "An individual shall not be liable for damages in any action brought in a Federal or State court that arises from an act . . . in providing . . . assistance in . . . an in-flight emergency in an aircraft of an air carrier."

[b] The Transportation Safety and System Stabilization Act

The Air Transportation Safety and System Stabilization Act creates a federal cause of action for damages arising from, or in connection with, the terrorist-related aircraft crashes of September 11, 2001. Exclusive jurisdiction is conferred on the United States District Court of the Southern District of New York to hear such actions. The Act limits recoveries against the various aviation defendants to their aggregate insurance coverage. The Act further provides that although the cause of action is federal, the law of the state in which the crash occurred shall be the law for decision, in both its choice of law and its substantive aspects, except to the extent that such law is inconsistent with, or preempted by, federal law.241

[c] Litigation Involving the TSA

There has been a variety of lawsuits naming the Transportation Security Administration (TSA) as a defendant, including suits involving defamation,242 damage to baggage,243 invasive screening,244 security risks,245 autism,246 discrimination,247 failure to recognize national identification cases,248 slips, trips and falls,249 First Amendment Retaliatory Arrest,250 being placed on terrorist watch list,251 climber's knife stolen,252 missing eye glasses,253 striking a screener,254 mistreatment255 and unlawful search and seizure.256

[d] Getting On and Off the No-Fly List

In this section we examine one method of controlling potentially dangerous airline passengers, i.e., putting them on the "No-Fly List," and the case of Latif v. Holder.257 This case involved plaintiffs who are citizens and lawful permanent residents of the United States (including four veterans of the United States Armed Forces) who were not allowed to board flights to or from the United States or over United States airspace. Plaintiffs believe they were denied boarding because they are on the No-Fly List, a government terrorist watch list of individuals who are prohibited from boarding commercial flights that will pass through or over United States airspace. Federal and/or local government officials told some Plaintiffs that they are on the No-Fly List. Each Plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). Despite Plaintiffs' requests to officials and agencies for explanations as to why they were not permitted to board flights, explanations were not provided and Plaintiffs did not know whether they would be permitted to fly in the future.

The Plaintiffs brought a lawsuit against the United States Attorney General and others asserting due process violations such as violation of their Fifth Amendment rights to procedural due process "because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List." In addition, the Plaintiffs asserted that the Defendants' actions were "arbitrary and capricious and constitute 'unlawful agency action' in violation of the Administrative Procedure Act (APA)."

"The Federal Bureau of Investigation (FBI), which administers the Terrorist Screening Center (TSC), develops and maintains the federal government's consolidated Terrorist Screening Database (TSDB or sometimes referred to as 'the watch list'). The No-Fly list is a subset of the TSDB."

[i] How Is the No-Fly List Created?

"TSC provides the No-Fly List to TSA, a component of the Department of Homeland Security (DHS), for use in pre-screening airline passengers. TSC receives nominations for inclusion in the TSDB and generally accepts those nominations on a showing of 'reasonable suspicion' that the individuals are known or suspected terrorists based on the totality of the information. TSC defines its reasonable-suspicion standard as requiring 'articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual 'is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities.'"

The DHS TRIP "is a mechanism available for individuals to seek redress for any travel-related screening issues experienced at airports or while crossing United States borders; i.e., denial of or delayed airline boarding, denial of or delayed entry into or exit from the United States, or continuous referral for additional (secondary) screening." Travelers may file a Traveler Inquiry Form to DHS TRIP and register a complaint which is the subject of review by DHS and/or TSC and leads to a determination by DHS TRIP which "neither confirms nor denies that the complainant is . . . on the No-Fly List and does not provide any further details about why the complainant may or may not be . . . on the No-Fly List. . . . Determination letters . . . do not provide assurances about the complainant's ability to undertake future travel. . . . DHS does not . . . give any explanation for inclusion on such a list at any point in the available administrative process. Thus, the complainant does not have an opportunity to contest or knowingly to offer corrections to the record on which any such determination may be based."

[ii] Right to International Travel by Air

In discussing the Plaintiffs' procedural due-process claim, the Court noted that "'[T]he reme Court has consistently treated the right to International travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment.'" In rejecting the defendant's arguments "that international air travel is a mere convenience," the Court held that "in light of the realities of our modern world (such) an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly...

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